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Y4.J89/2: . g ^^^ io3-l03l, Pt. 3
2T!!!!J^FIRMATION HEARINGS
TWTEDERAL APPOINTMENTS
HEAKINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
SECOND SESSION
ON
CONFIRMATIONS OF APPOINTEES TO THE FEDERAL JUDICIARY
MARCH 25; APRIL 21, 22, 29; MAY 12 AND 25, 1994
Part 3
Serial No. J-103-28
Printed for the use of the Committee on the Judiciary
U.S. GPO
MAR I 51996
nEPOSlfORY DOC
/£5/<>A
S. Hrg. 103-1031, Pt. 3
CONHRMATION HEARINGS
ON FEDERAL APPOINTMENTS
HEARINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
SECOND SESSION
ON
CONFIRMATIONS OF APPOINTEES TO THE FEDERAL JUDICIARY
MARCH 25; APRIL 21, 22, 29; MAY 12 AND 25, 1994
Parts
Serial No. J-103-28
Printed for the use of the Committee on the Judiciary
bOSTON PUBLIC LIBf^ArtY ^^
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For sale by the U.S. Government Printing Office
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ISBN 0-16-052259-5
COMMITTEE ON THE JUDICIARY
JOSEPH R. BIDEN, Jr., Delaware, Chairman
EDWARD M. KENNEDY, Massachusetts
HOWARD M. METZENBAUM, Ohio
DENNIS DeCONCINI, Arizona
PATRICK J. LEAHY, Vermont
HOWELL HEFLIN, Alabama
PAUL SIMON, IlUnois
HERBERT KOHL, Wisconsin
DIANNE FEINSTEIN, CaUfomia
ORRIN G. HATCH, Utah
STROM THURMOND, South Carolina
ALAN K. SIMPSON, Wyoming
CHARLES E. GRASSLEY, Iowa
ARLEN SPECTER, Pennsylvania
HANK BROWN, Colorado
WILLIAM S. COHEN, Maine
LARRY PRESSLER, South Dakota
CAROL MOSELEY-BRAUN, IlUnois
Cynthia C. Hogan, Chief Counsel
Catherine M. Russell, Staff Director
Mark R. Disler, Minority Staff Director
Sharon Prost, Minority Chief Counsel
(II)
,^,/^eU Of J8US MOTSOc
I
/
CONTENTS
HEARING DATES
Page
Friday, March 25, 1994 ,^1
Thursday, April 21, 1994 105
Friday, April 22, 1994 377
Friday, April 29, 1994 511
Thursday, May 12, 1994 665
Wednesday, May 25, 1994 923
FRIDAY, MARCH 25, 1994
Statements of Committee Members
Moseley-Braun, Hon. Carol 1
Simon, Hon. Paul 10
Introduction of Nominees
Feinstein, Hon. Dianne 2
Hutchison, Hon. Kay Bailey 11
Brooks, Hon. Jack 11
de la Garza, Hon. E (prepared statement) 12
Moseley-Braun, Hon. Carol 12
Testimony of Nominees
Audrey Collins, Los Angeles, CA, to be U.S. District Judge for the Central
District of California 4
Questioning by:
Senator Moseley-Braun 4
Qp»-jof Qj" SoGctcr
Fortunate Benavides, Austin, TX, to be U.S. Circuit Judge for the Fifth
Circuit 15
Questioning by:
Senator Simon 15
Scnstor SoGctcr -^^
Ruben Castillo, Chicago, IL, to be U.S. District Judge for the Northern
District of Illinois 18
Questioning by:
Senator Simon 1°
Alphabetical List and Materl^l Submitted
Benavides, Fortunate:
Testimony 15
Questionnaire 53
Castillo, Ruben:
Testimony 18
Questionnaire 81
Collins, Audrey:
Testimony 4
Questionnaire 21
(III)
IV
Page
Simon, Hon. Paul:
Letter from J. Eugene Balloun, Law Offices of Shook, Hardy & Bacon,
P.C, Overland Park, KS, Mar. 1, 1994 17
THURSDAY, APRIL 21, 1994
Statement of Committee Member
Kohl, Hon. Herbert 105
Introduction of Nominees
Pell, Hon. Claiborne 107
Chafee, Hon. John 107
Nunn, Hon. Sam 108
Coverdell, Hon. Paul 110
Lewis, Hon. John 110
Glenn, Hon. John 112
Metzenbaum, Hon. Howard M 112
Johnston, Hon. J. Bennett 113
Prepared statement 113
Breaux, Hon. John B 114
Jefferson, Hon. William J 115
Fields, Hon. Cleo 116
Testimony of Nominees
Carl E. Stewart, Shreveport, LA, to be U.S. Circuit Judge for the Fifth
Circuit 117
Questioning by:
Senator Kohl 117
Senator Thurmond 119
James Carr, Toledo, OH, to be U.S. District Judge for the Northern District
of Ohio 120
Questioning by:
Senator Kohl 120
Senator Thurmond 122
Clarence Cooper, Atlanta, GA, to be U.S. District Judge for the Northern
District of Georgia 123
Questioning by:
Senator Kohl 124
Senator Thurmond 125
Frank M. Hull, Atlanta, GA, to be U.S. District Judge for the Northern
District of Georgia 127
Questioning by:
Senator Kohl 127
Senator Thurmond 128
Mary M. Lisi, Providence, RI, to be U.S. District Judge for the District
of Rhode Island 129
Questioning by:
Senator Kohl 130
Senator Thurmond 131
W. Louis Sands, Macon, GA, to be U.S. District Judge for the Middle District
of Georgia 132
Questioning by:
Senator Kohl 132
Senator Thurmond 134
Ai.piiABETiCAL List and Material Submitted
Carr, James:
Testimony 120
Questionnaire 167
Cooper, Clarence:
Testimony 123
Questionnaire 220
V
Page
Hull, Frank M.:
Testimony 127
Questionnaire 251
Kohl, Hon. Herbert:
Letter to Hon. Joseph Biden, U.S. Senate, Washington, DC, from the
Law Firm of Fortunato & Tarro, Warwick, RI, Mar. 15, 1994 106
Letter from E. Michael McCann, district attorney. Office of District Attor-
ney, Milwaukee County, Milwaukee, WI, Apr. 18, 1994 120
Lisi, Mary M.;
Testimony 129
Questionnaire 301
Sands, W. Louis:
Testimony 132
Questionnaire 332
Stewart, Carl E.:
Testimony 117
Questionnaire 137
FRIDAY, APRIL 22, 1994
Statements of Committee Members
Feinstein, Hon. Dianne 377
Hatch, Hon. Orrin (prepared statement) 377
Introduction of Nominees
Moynihan, Hon. Daniel Patrick (prepared statement) 378
Norton, Hon. Eleanor Holmes 378
Feinstein, Hon. Dianne 379
Testimony of Nominee
Michael R. Bromwich, to be Inspector General, U.S. Department of Justice 380
Questioning by:
Senator Feinstein 381
Alphabetical List and Material Submitted
Bromwich, Michael R.:
Testimony 380
Questionnaire 384
Feinstein, Hon. Dianne:
Letters in support of Michael R. Bromwich from:
1. Law enforcement — U.S. Attorneys Office for the Southern District
of New York:
Rudolph W. Giuliani, Mar. 10, 1994 454
Stuart E. Abrams, Feb. 10, 1994 455
Bruce A. Baird, Feb. 23, 1994 457
Charles M. Carberry, Feb. 24, 1994 458
John K. Carroll, Feb. 22, 1994 459
Alan M. Cohen, Mar. 7, 1994 460
Denise Cote, Feb. 16, 1994 462
Rhea Kemble Dignam, Feb. 14, 1994 464
Jess Fardella, Feb. 11, 1994 466
Maria T. Galeno, Feb. 23, 1994 468
Helen Gredd, Mar. 28, 1994 470
Howard E. Heiss, Feb. 18, 1994 471
Mark R. Hellerer, Feb. 14, 1994 472
Annmarie Levins, Feb. 24, 1994 474
Edward J.M. Little, Feb. 22, 1994 476
Roanne L. Mann, Feb. 15, 1994 477
Aaron R. Marcu, Feb. 22, 1994 479
Shirah Neiman, Mar. 1, 1994 481
Benito Romano, Feb. 23, 1994 482
Peter J. Romatowski, Feb. 11, 1994 483
BartM. Schwartz, Feb. 14, 1994 485
VI
Page
Feinstein, Hon. Dianne — Continued
Letters in support of Michael R. Bromwich from — Continued
1. Law enforcement — U.S. Attorney's Office for the Southern District
of New York — Continued
Linda C. Severin, Mar. 7, 1994 487
Paul Shechtman, Feb. 15, 1994 489
2. Iran-Contra Counsels:
Richard W. Beckler, Feb. 17, 1994 491
David P. Doherty, Mar. 14, 1994 492
Earl C. Dudley, Jr., Mar. 2, 1994 493
Leonard Garment, Feb. 14, 1994 495
Thomas C. Green, Feb. 22, 1994 496
N. Richard Janis, Feb. 15, 1994 497
3. Federal judges:
Robert L. Carter, Feb. 18, 1994 499
Morris E. Lasker, Feb. 16, 1994 501
Stanley Sporkin, Feb. 14, 1994 503
4. Other Government officials:
Kenneth I. Juster, Feb. 14, 1994 505
Terry F. Lenzner, Feb. 21, 1994 506
Herbert J. Stem, Feb. 14, 1994 507
Geoffrey S. Stewart, Feb. 25, 1994 508
Dan K. Webb, Feb. 17, 1994 510
FRIDAY, APRIL 29, 1994
Statement of Committee Member
Metzenbaum, Hon. Howard M 511
Introduction of Nominees
Glenn, Hon. John 511
Mo)Tiihan, Hon. Daniel Patrick 512
D'Amato, Hon. Alfonse M. (prepared statement) 513
Boren, Hon. David L 513
de Lugo, Hon. Ron 515
Prepared statement 517
Hodge, Hon. Derek M 518
Hodge, Hon. Verne 521
Testimony of Nominees
Robert Henry, Oklahoma City, OK, to be U.S. Circuit Judge for the Tenth
Circuit 522
Questioning by:
Senator Metzenbaum 522
Deborah Batts, New York, NY, to be U.S. District Judge for the Southern
District of New York 524
Questioning by:
Senator Metzenbaum 524
Raymond Finch, Kingshill, St. Croix, VI, to be U.S. District Judge for the
District of the Virgin Islands 527
Questioning by:
Senator Metzenbaum 527
Solomon Oliver, Jr., Cleveland Heights, OH, to be U.S. District Judge for
the Northern District of Ohio 531
Questioning by:
Senator Metzenbaum o<jO
Al.PHABETICAL LiST AND MATERIAL SUBMITTED
Batts, Deborah:
Testimony 524
Questionnaire 581
Finch, Raymond:
Testimony 527
VII
Page
Finch, Rajmiond — Continued
Questionnaire 607
Henry, Robert:
Testimony ^^-^
Questionnaire 535
Hodge, Derek M.:
List of visiting U.S. district court judges to the U.S. Virgin Islands,
1989-94 519
OUver, Solomon, Jr.:
Testimony 531
Questionnaire 631
THURSDAY, MAY 12, 1994
Statement of Committee Member
Heflin, Hon. Howell 665
Introduction of Nominees
Boren, Hon. David L 665
Nickles, Hon. Don 667
Wofford, Hon. Harris 668
Specter, Hon. Arlen 669
Norton, Hon. Eleanor Holmes 670
Hutchison, Hon. Kay Bailey 671
Brooks, Hon. Jack 672
Andrews, Hon. Michael A 673
Prepared statement 673
Testimony of Nominees
Theodore McKee, of Pennsylvania, to be U.S. Circuit Judge for the Third
Circuit 674
Questioning by:
Senator Heflin 675
Billy Michael Burrage, of Oklahoma, to be U.S. District Judge for the North-
em, Eastern, and Western Districts of Oklahoma 677
Questioning by:
Senator Heflin 677
Vanessa Gilmore, of Texas, to be U.S. District Judge for the Southern District
of Texas 679
Questioning by:
Senator Heflin 679
Terry C. Kern, of Oklahoma, to be U.S. District Judge for the Northern
District of Oklahoma 681
Questioning by:
Senator Heflin 681
Gladys Kessler, of the District of Columbia, to be U.S. District Judge for
the District of Columbia 683
Questioning by:
Senator Heflin 684
Emmet Sullivan, of the District of Columbia, to be U.S. District Judge for
the District of Columbia 686
Questioning by:
Senator Heflin _686
Alphabetical List and Material Submitted
Burrage, Billy Michael:
Testimony 677
Questionnaire 724
Gilmore, Vanessa:
Testimony 679
Questionnaire 764
Kern, Terry C:
Testimony 681
VIII
Kern, Terry C. — Continued
Questionnaire 797
Kessler Gladys:
Testimony 683
Questionnaire 833
McKee, Theodore:
Testimony 674
Questionnaire 688
Sullivan, Emmet:
Testimony 686
Questionnaire 888
By-Laws of Lawyers' Club of Washington, Nov. 8, 1974, amended
May 20, 1982 (section 5) 918
WEDNESDAY, MAY 25, 1994
Statement of Committee Member
DeConcini, Hon. Dennis 923
Introduction of Nominees
Sarbanes, Hon. Paul S 924
Hutchison, Hon. Kay Bailey 925
Brooks, Hon. Jack 926
Mikulski, Hon. Barbara 926
Levin, Hon. Carl 927
Riegle, Hon. Donald W., Jr. (prepared statement) 928
Conyers, Hon. John, Jr 929
Collins, Hon. Barbara-Rose 930
Norton, Hon. Eleanor Holmes 931
Boxer, Hon. Barbara 932
Simpson, Hon. Alan K 933
Wise, Hon. Robert E., Jr 935
Testimony of Nominees
Diana G. Motz, Baltimore, MD, to be U.S. Circuit Judge for the Fourth
Circuit 936
Questioning by:
Senator DeConcini 936
Senator Simpson 938
Robert Manley Parker, Tyler, TX, to be U.S. Circuit Judge for the Fifth
Circuit 936
Questioning by:
Senator DeConcini 937
Senator Simpson 941
Ricardo M. Urbina, Washington, DC, to be U.S. District Judge for the District
of Columbia 943
Questioning by:
Senator DeConcini 942
Senator Simpson 951
Richard A. Paez, Los Angeles, CA, to be U.S. District Judge for the Central
District of California 943
Questioning by:
Senator DeConcini 942
Senator Simpson 951
Denise Page Hood, Detroit, MI, to be U.S. District Judge for the Eastern
District of Michigan 944
Questioning by:
Senator DeConcini 942
Senator Simpson 951
Paul L. Friedman, Washington, DC, to be U.S. District Judge for the District
of Columbia 944
Questioning by:
Senator DeConcini 942
Senator Simpson 950
IX V
Page
William F. Downes, Casper, WY, to be U.S. District Judge for the District
of Wyoming r 945
Questioning by:
Senator DeConcini ^.T:..; 942
Senator Simpson 952
Alphabetical List and Material Submitted
DeConcini, Hon. Dennis:
Letter in support of Mr. Downes from Mike Sullivan, Governor, and
Kathy Karpan, secretary of state. State of Wyoming, Office of the
Governor, Cheyenne, WY, May 25, 1994 949
Downes, William F.:
Testimony 945
Questionnaire 1226
Letter to Chairman Biden in response to Senator Metzenbaum's written
questions, Casper, WY, June 7, 1994 1290
Friedman, Paul L.:
Testimony 944
Questionnaire 1138
Hood, Denise Page:
Testimony 944
Questionnaire 1113
Motz, Diana G.:
Testimony 936
Questionnaire 955
Paez, Richard A.:
Testimony 943
Questionnaire 1075
Parker, Robert Manley:
Testimony 936
Questionnaire 1004
Urbina, Ricardo M.:
Testimony 943
Questionnaire 1039
ALPHABETICAL LIST OF NOMINEES FOR FEDERAL APPOINTMENTS
Batts, Deborah, New York, NY, to be U.S. District Judge for the Southern
District of New York 524
Benavides, Fortunato, Austin, TX, to be U.S. Circuit Judge for the Fifth
Circuit 15
Bromwich, Michael R., to be Inspector General, U.S. Department of Justice .... 380
Burrage, Billy Michael, of Oklahoma, to be U.S. District Judge for the North-
ern, Eastern, and Western Districts of Oklahoma 677
Carr, James, Toledo, OH, to be U.S. District Judge for the Northern District
of Ohio 120
Castillo, Ruben, Chicago, IL, to be U.S. District Judge for the Northern
District of Illinois 18
Collins, Audrey, Los Angeles, CA, to be U.S. District Judge for the Central
District of California 4
Cooper, Clarence, Atlanta, GA, to be U.S. District Judge for the Northern
District of Georgia 123
Downes, WiUiam F., Casper, WY, to be U.S. District Judge for the District
of Wyoming 945
Finch, Raymond, Kingshill, St. Croix, VI, to be U.S. District Judge for the
District of the Virgin Islands 527
Friedman, Paul L., Washington, DC, to be U.S. District Judge for the District
of Columbia 944
Gilmore, Vanessa, of Texas, to be U.S. District Judge for the Southern Dis-
trict of Texas 679
Henry, Robert, Oklahoma City, OK, to be U.S. Circuit Judge for the Tenth
Circuit 522
Hood, Denise Page, Detroit, MI, to be U.S. District Judge for the Eastern
District of Michigan 944
Hull, Frank M., Atlanta, GA, to be U.S. District Judge for the Northern
District of Georgia 127
\ X
r Page
Kern, Terry C, of Oklahoma, to be U.S. District Judge for the Northern
District of Oklahoma 681
Kessler, Gladys, of the District of Colujnb^a, to be U.S. District Judge for
the District of Columbia .<:: 683
Lisi, Mary M., Providence, RI, to be U.S. District Judge for the Northern
District of Rhode Island 129
McKee, Theodore, of Pennsylvania, to be U.S. Circuit Judge for the Third
Circuit 674
Motz, Diana G., Baltimore, MD, to be U.S. Circuit Judge for the Fourth
Circuit 936
Oliver, Solomon, Jr., Cleveland Heights, OH, to be U.S. District Judge for
the Northern District of Ohio 531
Paez, Richard A., Los Angeles, CA, to be U.S. District Judge for the Central
District of California 943
Parker, Robert Manley, Tyler, TX, to be U.S. Circuit Judge for the Fifth
Circuit 936
Sands, W. Louis, Macon, GA, to be U.S. District Judge for the Middle District
of Georgia 132
Stewart, Carl E., Shreveport, LA, to be U.S. Circuit Judge for the Fifth
Circuit 117
Sullivan, Emmet, of the District of Columbia, to be U.S. District Judge
for the District of Columbia 686
Urbina, Ricardo M., Washington, DC, to be U.S. District Judge for the Dis-
trict of Columbia 943
NOMINATIONS OF AUDREY COLLINS, TO BE
U.S. DISTRICT JUDGE; FORTUNATO BENA-
VIDES, TO BE U.S. CIRCUIT JUDGE; AND
RUBEN CASTILLO, TO BE U.S. DISTRICT
JUDGE
FRroAY, MARCH 25, 1994
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 10:44 a.m., in room
SD-226, Dirksen Senate Office Building, Hon. Carol Moseley-
Braun presiding.
Also present: Senators Simon, Feinstein, and Specter.
OPENING STATEMENT OF SENATOR MOSELEY-BRAUN
Senator Moseley-Braun [presiding]. Ladies and gentlemen, I
want to first thank you for coming this morning. The purpose of
this hearing is the confirmation of Ms. Audrey Collins, Mr. Ruben
Castillo, and Mr. Fortunato Benavides. So we have three judicial
nominees to be heard this morning, and we will start first with Ms.
Collins in Hght of the fact that Senator Feinstein has joined us.
Just by way of explanation for those of you who have not been
through this process as friends or family of the nominees, the Con-
stitution of the United States in article II, section 2, in describing
Presidential power, says that the President of the United States
has the authority to appoint judges. There are a number of other
appointments that he is authorized obviously to make in this sec-
tion, but then it says that he shall have the power, by and with
the advice and consent of the Senate, to make treaties and appoint-
ments.
So we are here as representatives of the Senate in a hearing of
the Senate Judiciary Committee to actually provide our advice and
consent on the nominations as made. Most of the nominees have
been through an already exhaustive process with the Department
of Justice, with the administration, and sometimes back in their
home States, but this is kind of the last leg and that is the good
news for everyone.
After this hearing, should the committee vote to recommend the
nominations, then there is a vote of the full Senate and, in all like-
lihood, I am trusting and hoping with all of you that there are no
glitches between today and that final vote. But that is the section
of the Constitution that gives us the authority and the power to do
what we are doing today, and I am looking forward to chairing as
(1)
much of this hearing as possible. Senator Simon is actually the
chair. He is right now on the Senate floor in the middle of an
amendment debate.
So, with that, as is customary, we will hear first from the Sen-
ators who wish to introduce nominees to the committee. Before we
do start, again, each nominee has completed a detailed question-
naire on his or her qualifications, experiences, finances, and philos-
ophy. The portions of the questionnaires available to the public will
be printed in the record of this hearing. We will also keep the
record open for a limited time just in case members of the commit-
tee would like to submit written questions.
With that, I would like to call Ms. Audrey Collins and Senator
Feinstein to introduce her to the committee.
The Senator from California.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR
FROM THE STATE OF CALIFORNIA
Senator Feinstein. Thank you very much. Madam Chairman. I
am very pleased to be here today and to introduce to you Audrey
Collins. She is an extremely qualified Los Angeles district attorney
whom I recommended for appointment to the District Court for the
Central District of California.
Audrey Collins is 1 of only 3 assistant district attorneys in the
Los Angeles department of 900 attorneys. That is the largest de-
partment in America and she holds the third highest position in
that department.
Her academic credentials have prepared her well for a distin-
guished legal career. Having won and maintained a 4-year aca-
demic scholarship to Howard University, from which she graduated
Phi Beta Kappa, Ms. Collins spent 7 years as a teacher in Wash-
ington, DC, Indiana, Colorado, and then moved to Los Angeles.
Deciding to pursue a career in law, she entered UCLA Law
School in 1974. Upon graduating, she soon joined the Los Angeles
County district attorney's office, where she has established a strong
reputation among her colleagues and supervisors.
When I was interviewing candidates for the post, I called District
Attorney Gil Garcetti to ask about Audrey's record in the depart-
ment. He gave her an unqualified, enthusiastic endorsement, and
said that the DA's loss would be the region's gain with Audrey
serving on the bench.
For the purpose of this introduction, I would like to focus my re-
marks on her 16-year career in the DA's office, a career that has
been marked by a string of promotions. From 1978 to 1987, the
nominee was deputy DA. In this capacity, she served from 1980 to
1983 when she worked in the consumer and environmental protec-
tion division, where she appeared in civil court frequently.
From 1983 to 1985, she served as grand jury legal advisor, where
she assisted the grand jurors in their role of civil oversight of the
county government. During this time, the grand jury heard some
of the most complex cases ever handled by the district attorney's
office, the Twilight Zone case and the McMartin Preschool Molesta-
tion case.
For 9 years during her tenure as deputy DA, she appeared in
criminal courts regularly. With the exception of her work in the
consumer and environmental protection division and as grand jury
adviser, the nominee focused solely on criminal cases and her
record is quite impressive.
She was sole counsel and successfully tried more thgin 200 cases
to a verdict. These cases included misdemeanor jury trials, mis-
demeanor and felony juvenile adjudications, and felony adult court
and jury trials. The nominee estimates that 90 percent of her cases
were tried before a jury. This type of experience is invaluable as
a judge carefully weighs the facts.
Among her many cases during this period, was, in 1986, People
V. Larry Charles McKiever. This is where the defendant had fire
jumped into a victim's car, forced her from the car, stole her wallet
and drove away, leaving her behind. The defendant was arrested
2 days later while driving the victim's car and charged with kid-
napping and robbery. He was found guilty on all charges and sen-
tenced to State prison for life and a 5-year enhancement for prior
conviction.
Senator Moseley-Braun. I am sorry. Senator. Not being from
California, what is "fire jumped"?
Senator Feinstein. I am sorry; fired and jumped; in other words,
started and jumped.
Senator Moseley-Braun. I am sorry. I thought this was a term
of art with which I was not familiar.
Senator Feinstein. No, no, no.
In 1986, in People v. Anthony Carl Rogers, the defendant cor-
nered the victim, demanded money, £ind struck her in the face
twice when she was too slow in giving him the money. The jury
found him guilty of robbery and he was sentenced to 5 years in
State prison.
There are other cases, as well, and I won't go into them now.
What I want to say that I think is very interesting about this nomi-
nee is when she was in school she originally believed she would
work for defend£ints. She was an intern in the district attorney's
office and, in this internship, encountered victims really for the
first time and realized how many of them were people of color. So
she came to identify with victims.
As part of that, I think in your questioning you will see she has
got a rather interesting approach. In her civic life, she has gone out
of her way to support victims and their rights, to work with them,
to console them, to help them. As she just said to me when we were
informally discussing her record, she said, you know, I have always
viewed that my job as a prosecutor wasn't really just to get a con-
viction; it was to find out what actually happened and what the
truth was and to be fair in that regard. I think that commends her
well for the Federal bench.
Madam Chairman, I recommend to you with great support, inter-
est, and eagerness the nomination of Audrey Collins.
Thank you.
Senator Moseley-Braun. Thank you very much. Senator Fein-
stein.
Ms. Collins, it is now your turn. If you would stand, please, to
take the oath? Do you swear that the testimony that you give in
this proceeding shall be the truth, the whole truth, and nothing but
the truth, so help you God?
Ms. Collins. I do.
Senator Moseley-Braun. Ms. Collins, if any members of your
family are with us today, please feel free to introduce them at this
point.
TESTIMONY OF AUDREY COLLINS, LOS ANGELES, CA, TO BE
U.S. DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALI-
FORNIA
Ms. Collins. Thank you. I would like to introduce to the commit-
tee my husband, Tim Collins, who has been my supportive partner
for over 26 years. I could not be here today without him. I would
also like to introduce my son, Tim, Jr., who is now a second-year
law student at Yale, and I am very proud of him. Unfortunately,
my daughter, Rachel, could not be here because she just finished
starring in the school play and that caused her to miss some school
work and I just didn't feel that she could afford to miss any more,
but we are also very proud of her.
Senator Moseley-Braun. Thank you. If you have an opening
statement to make.
Ms. Collins. No, other than to thank Senator Feinstein for rec-
ommending my name to the President and to thank this committee
for scheduling the hearing in such a prompt, expeditious way.
questioning by senator MOSELEY-BRAUN
Senator Moseley-Braun. Well, Ms. Collins, I have, on behalf of
the committee, a few questions for you. There has been a great deal
of attention paid to the Federal courts' increased caseloads and the
resulting problem of docket backlog. This backlog, of course, has
had an adverse effect on litigants before the court and, as Senator
Feinstein pointed out in her eloquent statement regarding your
concern for victims, has had an adverse effect on victims and peo-
ple who are seeking justice.
So the question I have for you is. If confirmed, what steps will
you take to ensure that your docket progresses at as quick a pace
as is fair and reasonable?
Ms. Collins. Your question certainly points out an increasing
problem nationwide, and I know, in the Central District of Califor-
nia. In my reading and preparation, I came across an interesting
statistic. In 1988, 64 percent of the available trial time was used
for civil trials, but in the first 9 months of 1993 that figure of 64
percent had dropped to only 42 percent of the available trial time
was used for civil cases.
This is an extremely serious problem because it goes to the very
heart of the system and possible denial of access of litigants to the
central district. I hope that my experience, both as a prosecutor
and as a manager in the DA's office, will be of assistance if I
should be confirmed, because as a manager, of course, I have had
experience managing diverse bureaus, all of which have competing
and different demands and needs, and one of the things that I have
learned to do is to prioritize and to set timetables and goals.
Specifically, I think it is important for a Federal district court
judge— in addition to all of the other talents which she or he must
possess, it is important for that person to be an active manager,
and one of the things that I would do, and I have already begun
discussing this with Chief Judge Byrne, is to very early delve into
the caseload which I would inherit, learn those cases and become
actively involved in managing them.
This would include such things as setting firm dates for discov-
ery, for pretrial settlement conferences and for trial dates, and, of
course, they would have to be realistic depending on the complexity
of the case, but to set firm dates and then stick to those. I would
also, as everyone in the central district does now, have mandatory
pre trial settlement conferences, and this is a policy in the central
district.
In addition to the mandatory pretrial settlement conferences
which are in court, I would hope to hold frequent telephonic con-
ferences, and this is one of the new methods that is being employed
in order to assist attorneys in focusing early on the issues that still
divide them and focusing their attention on how they can narrow
those issues. So I would also do that.
Another step that is being taken within the central district is for
the district court judges to go to the chief judge, when necessary,
and ask him to assign complex civil or criminal cases to visiting or
senior judges. I would do that. In addition, I would hope to work
very closely with the magistrates. I understand we have excellent
magistrates in the centr^ district. I have already met with some
of them, and I would hope to work closely with them so that they
could be of assistance especially with discovery and nondispositive
motions in the complex cases.
Senator Moseley-Braun. If confirmed to the Federal bench, you
will face a docket that includes a heavy criminal caseload, as well
as constitutional, employment, and civil rights cases. Certainly, you
have a great deal of experience in criminal matters, but what steps
do you plan to take to familiarize yourself with those areas of the
law in which you may have less experience?
Ms. Collins. First, I have been fortunate in that for about the
past year as assistant district attorney one of my duties has been
to be the top manager in our office in the area of personnel, and
this includes such issues as working with the Americans With Dis-
abilities Act and also working with employees who are being dis-
ciplined, or the recommendation is that they be disciplined, and I
make the ultimate decision as to whether they will be disciplined.
I also deal with all issues of harassment that come through the dis-
trict attorney's office. So, fortunately, I have begun familiarizing
myself already with the law relating to the Americans With Dis-
abilities Act, harassment, and other employment issues.
Since being nominated, I have also begun studying the other
areas which you mentioned, specifically civil rights law and con-
stitutional law. I have also visited already with Chief Judge Byrne,
who has been very helpful in discussing with me caseload and case
procedures.
I have received materials from the Federal Judicial Center and
I am reviewing those, including some videotapes, which are excel-
lent, on topics such as jurisdiction and evidence. I have obtained
the Federal Rules of Civil Procedure and Criminal Procedure and
Evidence, and I am studying those. So I do believe with those
steps, plus the excellent orientation I received yesterday from the
administrative office and my plans to attend a week-long video pro-
gram presented by the Federal Judicial Center, I will be in good
shape to be up to speed if I should be fortunate enough to be con-
firmed.
Senator Moseley-Braun. What would you do if faced with a
ninth circuit precedent that controlled a matter before you but with
which you personally disagreed?
Ms. Collins. Senator, I have a full understanding that, if con-
firmed, it would be my obligation to follow precedent, whether that
be a U.S. Supreme Court or a ninth circuit case, and I would have
absolutely no difficulty in following the doctrine of stare decisis and
following precedent, no matter what my personal opinion might be.
Senator Moseley-Braun. Since graduating from law school, you
have worked at the Los Angeles district attorney's office first as a
litigator and then as an administrator. You have also been involved
in a number of professional organizations and have a record of
doing pro bono assistance in the community at large. In what way
do you feel these experiences have prepared you to serve as a Fed-
eral district court judge?
Ms. Collins. That is an interesting question because I feel I
have learned different things and I have gained different skills
from each of those experiences and opportunities, although there is
some overlap. As a prosecutor — and all of my litigation is in the
area of prosecution — as a prosecutor, of course, first of all, I have
learned criminal law, criminal procedure, and evidence, and as I
have begun my study of Federal criminal law and evidence, I am
happy to be reminded how similar the Federal and the California
statutes are. So, that certainly has been a good preparation for me,
should I be confirmed.
I have also learned, of course, how the system works, and al-
though there are some differences between the State and the Fed-
eral system, I think that much of this will be transferrable. I have
learned how to try a case and I think, if confirmed, it is very help-
ful as you see a case unfolding before you for you to see if there
are any problems ahead that you might recognize and be able to
help the attorneys to solve.
More importantly — and I think I have an idea, as I said, of how
the system works — over 90 percent of the cases, criminal or civil,
never go to trial. They are settled, and it is important to under-
stand that actually that is a fairly cooperative process between the
prosecution and the defense, and the judge sometimes is involved —
sometimes in the State system is involved, sometimes is not. But
it is important to have an understanding of how all the elements
of the criminal justice system have to work together to make the
system work, and I will bring that experience to bear if I am fortu-
nate enough to be confirmed.
One very important thing that I bring is something that the Sen-
ator mentioned in her remarks, and that is a sensitivity to all of
the parties in the system. I think I was certainly well aware from
law school of the rights of the defendant and of how respectful the
system is of those, but it wasn't until I joined the district attorney's
office as a summer law clerk that I became sensitized to then needs
of the victims. I have worked with that throughout my career, first
in the courtroom in making sure the courtroom was a comfortable,
accessible place for victims, who were often elderly, often people of
color and who really appreciated and enjoyed working with some-
one who was sensitive and accommodating to their needs.
As an administrator, I have continued this work because I have
been the administrator in charge of the victims and witnesses as-
sistance program which serves that same purpose by making vic-
tims feel comfortable, by providing financial assistance to victims
who have been injured, and there is nothing, I think, more impor-
tant that I have done in my career than to be sensitive to, and ac-
commodating to, and helping the victims of crime.
But probably the most important thing that I have learned and
that I would bring to the Federal bench, if confirmed, is something
else that the Senator mentioned, and it is my knowledge that the
most important thing a prosecutor does is not to obtain convictions.
It is to look for truth and to do justice. Much of the time, after ex-
amining a case, I felt that I did justice by seeking a conviction, but
there were certainly times when I thought that the only way to do
justice was to dismiss all or part of the case, and that core value,
that core thing that I do as a prosecutor to seek justice is, I think,
the same core value that a Federal district court judge has. I, as
a district court judge, would be there to do justice. So those are the
things that I would take from my career as a prosecutor or litiga-
tor.
On the administrative side — I mean, there, I think, is an admin-
istrator in any position. It is a big-picture type of job, and there I
got an idea not just what happens in one courtroom or even in one
courthouse, but what is going on in the entire district attorney's of-
fice, what is going on in the entire criminal justice system, and
even to some extent, as I have struggled with budget, what is going
on in all of Los Angeles County.
I have had to learn to prioritize, to have timetables for all of the
bureaus that I work with, to work with personnel, to work with
needs for space, to work with budget, especially in Los Angeles
County where we simply don't have enough budget dollars to go
around, and I have had to work with the board of supervisors to
try to, as an advocate, seek sufficient funding for the district attor-
ney's office.
I think, again, all of these management skills would be
transferrable to the Federal bench not only in managing the docket
problems that we talked about, but hopefully, if I were there for
a while and got my feet wet, maybe even helping the court overall
and contributing with such issues as budget and space that go on.
The third area which you talked about, which is my work with
pro bono or professional organizations — that has been so important
to me, whether it is going out to a law school and speaking to the
black law students group, whether it is working with the black po-
lice officers association, meeting with gang members in South
Central, which I have been doing recently, or whether it is speak-
ing to California women lawyers on gender bias or my work with
the Committee of Bar Examiners, as well as the other bar that I
have done, because I feel I have gotten so much out of that. I have
felt that I have contributed to the community, I have contributed
to the bar, and not only have I contributed, but I have gotten some-
thing out of that, too, and that is balance, and also coUegiality.
8
I think, if confirmed and I become a Federal court judge, it is
still important to have balance. It is important to give something
back to the community and to the bench and bar, and the
collegiality aspect is extremely important, too, because the bench
can be very isolating, I believe, based on everything I have heard.
And it is important to get out there and meet people that you
wouldn't necessarily have met otherwise, and through my work
with bar associations I have met people well outside not only the
district attorney's office, but outside criminal justice. I have met
civil lawyers through the Committee of Bar Examiners. I have even
met wonderful public members who aren't lawyers, but people who
are giving up their own time from their busy careers — and some of
them are college professors, retired military officers, and here they
are contributing to the legal profession. What a wonderful example
they have set, and meeting these people has been enriching, too,
and continuing this tjrpe of experience, I think, would help to make
me a more balanced and keep me a balanced individual.
Senator Moseley-Braun. We have been joined by Senator Spec-
ter. I have concluded my questions.
Senator Simon, have you any questions?
Senator Simon. I do not. I apologize for getting here late. I want
to thank my colleague for starting the hearing here. I had an
amendment on the floor, which I am pleased was accepted on the
floor, so I had to get here late. I apologize to the nominee. I don't
have any questions at this point.
Ms. Collins. Thank you. I am just pleased, and congratulations
on your success on the floor.
Senator SiMON. Thank you.
Senator Moseley-Braun. Senator Specter.
QUESTIONING BY SENATOR SPECTER
Senator Specter. Why do you want to be a Federal judge?
Ms. Collins. Being a Federal judge, I believe, would offer me the
best opportunity I can think of to serve the residents of the central
district, which is a seven-county district, very diverse, and I have
been in public service ever since I became a lawyer, starting with
legal services, which I worked for for several months, and then
coming to the district attorney's office for the past 16 years. I feel
that I have made real contributions there, but that going to the
Federal district court, if confirmed, would allow me to contribute
even more to the residents who live in this entire area.
It is an opportunity for service that I think will hopefully allow
me to continue to open up and bring more access to the courts,
which is something that I was discussing earlier in the sense of vic-
tims' rights, making the courts more open £ind accessible to victims.
And I think that one of my strengths is that I am good with people,
I am a people person, and that as a Federal district court judge I
can assist with making the courts more accessible, and I think that
will also help in resolving the docket problems.
As I said, I think that I will be a good manager and that I will
be able to easily assume the problems inherent in a crowded docket
and be able to assist with that as the courts are faced with crimi-
nal and civil issues that are really central to our Nation's future.
Senator SPECTER. I note that you were born in Chester, PA.
Ms. Collins. Yes, I was, and then I lived in Yeadon for many,
many years.
Senator Specter. When did you leave Pennsylvania?
Ms. Collins. When I went to college, that is really when I left,
although, of course, I continued to go home for holidays and vaca-
tions, and then when I got married right after graduating from col-
lege, I did not go back to live in Pennsylvania an3rmore. But, you
know, I still miss Pennsylvania, Senator, and the seasons. I truly
do. I love California, but the sameness of the terrain and the sea-
sons often msike me miss Pennsylvania, although I gather from my
mother, who still lives in Lansdowne, that this was a real tough
winter.
Senator Specter. It was. You have served for a long time as a
deputy district attorney in Los Angeles. What sort of work did you
do there?
Ms. Collins. I was privileged to have a great variety of assign-
ments. Due to the size of
Senator Specter. Did you try cases?
Ms. Collins. Oh, yes.
Senator SPECTER. Murder cases?
Ms. Collins. Yes. I also was privileged to be in our one civil divi-
sion, which was consumer and environment.
Senator SPECTER. Do you think it is realistic to have mandatory
life sentences, three strikes and you are out?
Ms. Collins. Well, the legislature has now, as you know, of
course, passed that. It is still also on the ballot in November. We
will see — when you say realistic, I don't know if you are thinking
of the cost aspect of building new prisons.
Senator Specter. What I am thinking about is whether we will,
in fact, get life sentences. My own view, after having experience as
a district attorney, is that justice needs to be individualized and
that whatever you say by way of mandating judges or the system,
the system and judges find a way not to follow the mandate if they
feel it is unfair.
What I have been advocating since I was elected in 1980 is to
try to get realistic rehabilitation for juveniles, first offenders and
second offenders — literacy training and job training — so that they
have a chance. I think that if they fail after a conviction and come
back a second time and have rehabilitation opportunities and fail
and come back on a third offense for violent crime, at that juncture
it is realistic to get a judge to impose a life sentence. But absent
that, I think three strikes and you are out is hollow rhetoric, and
we can mandate all we like, but it will not happen.
I would be interested in your experience, since I note you were
in the district attorney's office for some 16 years. You outrank me
by a couple of years. What do you think?
Ms. Collins. I guess it is really too soon to say. I can tell you
that originally our district attorney, Gil Garcetti, favored a three-
strikes bill that was somewhat more narrowly drawn than the ver-
sion that ultimately passed. But now that that is the law, the ver-
sion that passed, of course, the district attorney's office is commit-
ted to and, in fact, will vigorously enforce it. I think, only having
been in law for a couple of weeks, it is too soon to say.
10
The bill itself, as I understand it — and I have only looked at it
slightly — really removes most of the discretion that judges would
otherwise have. Even the second strike is double the normal term,
and the third strike, which need not be for a serious or violent fel-
ony, then does mandate, as you have stated, life without possibility
of parole.
The district attorney's office, of course, too, is mandated to, and
will, not only file, but file prior felony convictions as required. So
I would anticipate, and I kiiow that there will be legal challenges
to this. It is my understanding that the defense bar is already
planning to, if they have not already, file such challenges. So I sup-
pose it is
Senator Specter. They will probably come right into Federal
court, your Federal court.
Ms. Collins. It is even conceivable that that could be before me,
yes, if I am confirmed.
Senator Specter. Thank you very much. Thank you, Mr. Chair-
man, or Madam Chairmsin, whoever is the chairman.
Senator Moseley-Braun. Well, almost the chairman, just for a
few more seconds.
Thank you very much. Again, this is the last leg of a long process
for you and we are all delighted to see such a stellar nominee com-
ing out of California, but then we would expect nothing less of Sen-
ator Feinstein. Thank you very much, Ms. Collins.
Ms. Collins. Thank you, and it has been a pleasure every step
along the way, and certainly including today. It is an honor. Thank
you very much.
Senator Moseley-Braun. Thank you.
We will now call Ruben Castillo.
Senator SiMON. Well, before we call Mr. Castillo, since Senator
Hutchison and Congressman Jack Brooks are here, why don't we
let them introduce their candidate, and then we will call on Mr.
Castillo.
Senator Moseley-Braun. Since seniority still has a role to play
in this legislative body. Senator Simon is the senior Member from
Illinois and the senior member on this committee, so I am going
to pass the gavel on to him.
OPENING STATEMENT OF SENATOR SIMON
Senator Simon [presiding]. Well, I thank you very much.
We welcome the nominee from the State of Texas, and I don't
know if either of you has a preference
Mr. Brooks. I think we ought to let the distinguished junior
Senator from Texas, the lovely lady from La Margue in my district,
though she be a Republican, introduce first.
Senator Simon. Senator Hutchison, be careful when Jack Brooks
praises you. I have learned that over the years. [Laughter.]
Mr. Brooks. Now, Paul, don't give her all that. Just let her go
on and talk, will you?
Senator SiMON. All right. We are pleased to have you here for
any statement you may make.
11
STATEMENT OF HON. KAY BAILEY HUTCHISON, A U.S.
SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Thank you, Mr. Chairman. I will say that
I appreciate the deference of the dean of the Texas delegation in
Congress. I thought that Ms. Moseley-Braun made a very good
point about seniority, and we are very proud to have Jack Brooks
as the dean. He has represented the district I grew up in for all
of my life, so we have known each other for a long time.
It is my pleasure to be here to introduce you to Pete Benavides.
I have known Pete for a long time. He is the law partner now of
a very good friend of mine, who is also one of the members of my
judicigil advisory committee, Morris Atlas. I was very surprised that
Mr. Benavides decided to go back into the judiciary. He has a long
record of distinguished service as a judge in Hidalgo County, as a
State district judge there, and also served on the State Court of Ap-
peals and the Texas Court of Criminal Appeals.
So he has been in public service all his life and just went into
private practice, and I asked him why he decided to take the oath
of poverty once again and go back into the judiciary, but I am very
pleased that he did because I think he will serve well on the fifth
circuit and I am very proud to be here to support him.
Senator Simon. Thank you very much.
It is a pleasure to welcome Jack Brooks, who is a genuine public
servant and, in addition, an enjoyable guy to be with and work
with. I served with him 10 years in the House. When you refer to
him as the dean of your delegation, I remember Wright Patman.
Things have changed now that you are the dean over there.
Senator HUTCHISON. Does that make you feel old, Mr. Chairman?
Senator Simon. Dean, we welcome you.
STATEMENT OF HON. JACK BROOKS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Representative Brooks. Thank you very much. Senator. I am de-
lighted to be here to introduce Fortunato "Pete" Benavides, a nomi-
nee for the U.S. Court of Appeals for the Fifth Circuit, to my long-
time colleagues in the Senate.
Judge Benavides has had a notable career in the Texas judicial
system, during which he authored more than 500 judicial opinions
in both criminal and civil cases. He has been praised by both the
prosecutors and the defense attorneys for his work, and he is
known for his compassion and fair-mindedness.
He was bom and educated in Texas. Judge Benavides is dedi-
cated to serving the community outside the courtroom as well. This
commitment is highlighted by his establishment, when he was a
county judge, of a center for troubled teenagers. In other words, he
was an early believer in alternative correction, particularly for
young offenders.
I believe that Judge Benavides is well prepared for a position on
the U.S. Court of Appeals and will do an excellent job on the fifth
circuit in New Orleans. His experience will serve this country well.
I would recommend him to you.
Senator SiMON. We thank you. We have a statement also that we
will enter in the record from Congressman de la Garza regarding
you, Judge.
12
[The prepared statement of Mr. de la Garza follows:]
Prepared Statement of E (Kika) de la Garza, a Representative in Congress
From the State of Texas
Mr. Chairman, it is very unfortunate that I cannot be present today to introduce
the Honorable Fortunate "Pete" Benavides who has been nominated by the Presi-
dent for the position of Circuit Judge for the 5th Circuit in Texas. The reason for
my absence is the death of a close and longtime friend which has necessitated my
returning to Texas. Were it not for that I would be with you this morning.
Judge Benavides is someone I have known for many, many years. I think very
highly of him and hold him in the highest regard. I am also fiilly acquainted with
his work. He has had a very distinguished career. Not only is he thoroughly quali-
fied but he has an extiaordinary knowledge which makes him an ideal candidate
for this position.
There are many accolades I could bestow on Judge Benavides but I think his
record speaks for itself. To that I can only add he is truly exceptional. I am proud
to know him and to call him my friend.
Thank you.
Senator SiMON. Judge, we will call on Mr. Castillo and then we
will ask you back — ^you are not going to get off that easily here,
Judge,
Judge Benavides. I understand.
Senator SiMON. But do you have members of your family you
would like to introduce here, or friends?
Judge Benavides. My family wasn't able to come up here. I do
have a cousin that is a doctor at George Washington University
that drove across town, Minerva Gorena, my first cousin, originally
from Edinburg, TX.
Senator SiMON. We welcome you here.
Senator Specter. Chairman Brooks, I said to Senator Simon,
will Chairman Brooks stand for questions? We don't often see you
at a witness table over here.
Mr. Brooks. With a clear conscience, it is no problem.
Senator Specter. I am sorry. I didn't hear you.
Mr. Brooks. I say if you have a clear conscience, it is no worry,
no problem.
Senator Specter. Well, I presume you mean your conscience, not
mine. [Laughter.]
It is a pleasure to see you here, and I will not try any questions
for fear of the response.
It is nice to see you. Senator Hutchison.
Mr. Brooks. Give your wife our best.
Senator Specter. Thank you.
Senator SiMON. We thank you both. Judge, we will excuse you
temporarily.
Judge Benavides. Before they leave, I would like to thank the
Senator and the Congressman for being here and introducing me.
Senator Simon. You are under good auspices.
Mr. Castillo, if you can go up there, we are going to hear from
my colleague. Senator Carol Moseley-Braun here first.
STATEMENT OF HON. CAROL MOSELEY-BRAUN, A U.S.
SENATOR FROM THE STATE OF U^LINOIS
Senator Moseley-Braun. Thank you very much, Mr. Chairman.
I am proud to be here today to introduce Mr. Ruben Castillo, the
nominee for U.S. district court judge for the Northern District of
Illinois. I am even prouder to be able to say that I was able to play
13
a part in selecting this outstanding nominee, and for that I am
eternally grateful to you, Senator Simon. We have, as you know,
a judicial merit selection commission back in Illinois that you es-
tablished, and you were gracious enough to allow me to play a co-
equal part in that process and I am mindful of it and grateful to
you for that.
When Mr. Castillo is confirmed by the U.S. Senate, and I am cer-
tain that he will be, he will become the first Latino Federal judge
in the State of Illinois. The son of immigrant parents — his father,
Ruben, Sr., emigrated from Mexico; his mother. Carmen, from
Puerto Rico — ^Ruben Castillo embodies the American dream. He is
the first member of his family to finish college, and it was his par-
ents who encouraged him to pursue higher education and instilled
in him a love of learning that led him to Loyola University in Chi-
cago.
It was then that he had his first experience with the law, work-
ing nights as a clerk in Cook County Circuit Court to put himself
through school. After graduation from Loyola, Mr. Castillo went on
to Northwestern University School of Law, one of the finest law
schools in the country. I must say there are people on the south
side of Chicago at the University of Chicago who argue that a little
bit, but nonetheless Northwestern is certainly one of the finest law
schools in the country. We are blessed to have a multitude of riches
in that regard in Chicago.
Ruben Castillo started his career in the law with the firm of Jen-
ner & Block which, as you know, is one of the largest, most pres-
tigious firms in Chicago, and in the country indeed, leaving after
5 years there to become assistant U.S. attorney, prosecuting crimi-
nal cases. His involvement, in fact, one case, prosecuting a drug
kingpin, resulted in a contract being placed on his life and he and
his family were forced to receive 24-hour police protection for a
time. Happily, that threat was resolved with no physical harm to
him or to his family.
Mr. Castillo left the U.S. attorney's office in 1988 to serve as di-
rector and regional counsel for the Mexican American Legal De-
fense and Education Fund, known as MALDEF. Under his leader-
ship, MALDEF filed and won a suit challenging the congressional
districts drawn up after the 1990 census. That lawsuit was success-
ful and it resulted in the first majority Hispanic district to be cre-
ated in Illinois, and that, of course, led to the election of Luis
Guttierez, the State's first Latino Congressman. Mr. Castillo head-
ed MALDEF until 1991, when he left to become the first Latino
partner at the prestigious Chicago law firm of Kirkland & Ellis.
I don't want to take up too much of the committee's time in this
regard, but before I conclude I would like to mention just a few of
the charitable activities that Mr. Castillo has devoted himself to
over the years. He is a member of the advisory boards of the Chil-
dren and Family Justice Center of Northwestern University, the
Chicago Legal Clinic, and Business and Professional People for the
Public Interest. He was appointed by Mayor Daly to serve on a
blue ribbon panel to recommend revisions to Chicago's minority
and female set-aside programs, and he is a member of the North-
ern District Court's Civil Justice Reform Act Advisory Group. He
has been awarded the Chicago Bar Association's Maurice Weigle
Award for outstanding service to the legal profession, the Attorney
of the Year Award from MALDEF, and the Community Service
Award by the Latin American Police Association.
Of course, Mr. Chairman, our merit selection committee highly
recommended him. His respect for the law and commitment to pub-
lic service and integrity are noteworthy and were the basis for their
recommendation to us. I am delighted to introduce him to the com-
mittee and to make this nomination.
I believe, as you are well aware, Mr. Chairman, that Ruben
Castillo is an outstanding attorney, one who brings to the bench a
rich history of involvement in the field of public interest law, and
I am proud to introduce him to the committee today and hope that
the Senate will act quickly on his nomination so that he may be
confirmed.
Thank you.
Senator Simon. Thank you. Senator Moseley-Braun. Let me just
add, in the process we had 138 lawyers who applied for the 3 va-
cancies. The commission recommended 10 out of 138. You are talk-
ing about some quality people there. Senator Moseley-Braun and I
interviewed all 10 and made the 3 recommendations.
Not only did you make a good impression on us personally in our
interview, but in informal conversations I had with people, and I
am sure Senator Moseley-Braun had the same experience, people
spoke very highly of you and I was pleased to join my colleague in
sending the recommendation to the Justice Department and the
White House.
I think you have members of your family here with you. Would
you like to introduce them, Mr. Castillo, and any other friends that
you may have here?
Mr. Castillo. Yes, I would. Thank you. Senator. First, I would
like to introduce my wife and life partner, Sylvia Mojica-Castillo;
my daughter, Francisca Castillo; my son, Roberto Castillo; my fa-
ther, Ruben Castillo; my mother. Carmen Castillo; my mother-in-
law, Ramona Mojica; my father-in-law, Felix Mojica; my sister-in-
law. Ester Rodriguez. And I have two good friends, Martin Castro,
who is president of the Mexican American Lawyers Association,
and a former trial partner and colleague of mine from the Justice
Department, Mary Harkenreiter.
Thank you.
Senator SiMON. Well, we are very happy to have all of them here,
and I might add that one of your guests is a brother of a staff
member of mine, which you probably are aware of.
I do have a serious question for those two young people. Are you
skipping school today? [Laughter.]
Mr. Castillo. They refuse to answer that question on the advice
of their counsel. [Laughter.]
Senator Simon. All right. Well, we thank you.
If I could ask both Judge Benavides and Mr. Castillo, if you could
stand and raise your right hands? Do you swear to tell the truth,
the whole truth and nothing but the truth, so help you God?
Judge Benavides. I do.
Mr. Castillo. I do.
Senator SiMON. Under our usual procedure, we would take Judge
Benavides first, but are you leaving now?
15
Senator Moseley-Braun. Thank you, Mr. Chairman. I have to
leave, and in light of the fact that we have already asked the ques-
tions that would be put to Mr. Castillo, I unfortunately will not be
able to put questions to Mr. Benavides. But at the same time, we
have a very busy Senate schedule and I have to get back.
Senator SiMON. All right.
Senator Moseley-Braun. But I know it is being left in great
hands.
Senator SiMON. In that event, I will follow precedent, and the
nominee for the higher court gets precedence over the district
judge, I have to tell you.
Mr. Castillo. I completely understand. Senator.
Senator SiMON. You will get used to that. [Laughter.]
Judge, we are very pleased to have you here as a nominee. I
have looked through your background. I note that, among other
things, you belong to a group in Corpus Christi called the Mus-
tangs. Tell me about the Mustangs. I assume this is not an organi-
zation that discriminates or would in any way disqualify you from
serving on the court of appeals.
TESTIMONY OF FORTUNATO BENAVTOES, AUSTIN, TX, TO BE
U.S. CIRCUIT JUDGE FOR THE FIFTH CIRCUIT
Judge Benavides. No. I think there are some that might come
from the name Mustangs, and I can assure you that you needn't
worry about that. Actually, the Mustangs of Corpus Christi, to
which I formerly belonged, is a very loose service association. I did
not apply for that position, but you just get asked to join a club
or an association of people that get together, donate food, cook food
and serve food for non-profit educational or charitable organiza-
tions. It owns no facilities, no clubs, no swimming pools, no res-
taurants or dining halls or anything of that nature.
QUESTIONING BY SENATOR SIMON
Senator SiMON. All right. My staff has just handed me a note
that we are going to have a roUcall vote in about 15 minutes, so
I am going to be very brief. That may be a break for both you and
Mr. Castillo here.
Let me ask the question that Senator Specter asked the previous
nominee. Why do you want to become a Federal judge?
Judge Benavides. That is a very good question. Senator. I have
had the good fortune and the honor to have served on various
courts in the State of Texas — county court, district court, court of
appeals, and then on the State's highest court, the court of last re-
sort in criminal matters. I enjoyed the work. I feel competent in
doing that work, and it also provides an avenue for a deep sense
of feeling or commitment that I have toward serving my people, my
community and my country, and it provides just a fantastic avenue
by which I can fulfill that drive or desire, whatever one might call
that.
Senator SiMON. I just received a letter from a Federal judge in
the Central District in Illinois, Judge Harold Baker, who said that
he was going to request to go on senior status, and he says that
as I look for his successor I ought to be looking for someone who,
16
among other things, is sensitive to those less fortunate. I couldn't
agree more. That is one of the things that is important.
Obviously, the law has to be applied regardless, but that sen-
sitivity does make a difference in the kind of judge you are, wheth-
er it is on the court of appeals or a district judge. What in your
background suggests that you have that sensitivity?
Judge Benavides. Well, we can start probably with my father,
who was bom in Mexico and came to this country to work and
fought in World War II and was wounded. It makes it very difficult
to forget your roots when you are still so close to the ground. I have
worked with juveniles, devoted much of my time to working with
children. I have had support in my campaigns from ethnic organi-
zations, from women's organizations.
I am from south Texas, Senator Simon, the deep part of south
Texas, and it is a very political area. It is over 80 percent Hispanic
and politics plays a great part in daily lives. People read the papers
and know who their politicians are and know what the issues are,
and there is always — ^you grow up with the idea of don't forget who
you are, and I don't think that I have forgotten who I am. I don't
think that I can ever forget who I am or where I come from and
the roots that I have.
Senator SiMON. Senator Specter?
QUESTIONING BY SENATOR SPECTER
Senator Specter. You had been a State court judge?
Judge Benavides. Yes, Senator.
Senator SPECTER. And why did you leave that position?
Judge Benavides. Well, if you are talking about the last State
court position, I did not make that decision, Senator. The people of
the State of Texas made that decision when I was on the court of
criminal appeals and I lost a statewide race.
Senator Specter. That probably speaks to your credit. [Laugh-
ter.]
Senator Simon I don't think has lost as many elections as I have,
so he really wouldn't understand it as well as I do.
Senator SiMON: Well, I have experienced that, too.
Senator Specter. That sounds like a solo loss, the way he said
it.
I do not know the details of your judicial service. How long were
you on the State bench?
Judge Benavides. Senator, I was — a little over 15 years. I served
at every level. I was a county court at law judge, which is a trial
court judge for misdemeanors.
Senator SPECTER. From 1981 to 1984?
Judge Benavides. Right. Then I was a district court judge, which
is the highest trial court bench, civil and criminal, and then I was
on the court of appeals in Corpus Christi, which was a direct appel-
late court for civil and criminal cases, for approximately 6V2 years,
and then the court of criminal appeals for almost 2 years, which
was a
Senator Specter. Is that the one that you stood for election and
lost?
Judge Benavides. Yes. That is a court of last resort in criminal
cases.
17
Senator SPECTER. Well, I have seen your electoral process in
Texas and I have wondered about it. The Pennsylvania Supreme
Court has been a source of national and international wonderment
as to what goes on in our court. I hope some day we can take State
court judges out of elective politics.
The fifth circuit certainly is a prestigious and very, very impor-
tant court. With a very limited number of grants of cert, the courts
of appeals have realistically become the court of last resort on mat-
ters of enormous importance.
I received a letter from a high school classmate of mine, an attor-
ney in Kansas, Gene Balloun, which I would like to make part of
the record, Mr. Chairman.
Senator Simon. It will be entered in the record.
[The letter referred to follows:]
Law Offices,
Shook, Hardy & Bacon P.C,
Overland Park, KS, March 1, 1994.
Hon. Arlen Specter,
U.S. Senate,
Washington, DC.
Dear Arlen: The Senate Judiciary Committee will soon be considering the nomi-
nation of F.P. (Pete) Benavides for appointment as a judge of the Court of Appeals
for the Fifth Ciroiit. I would like to give my wholehearted endorsement to Judge
Benavides, and iirge you to support his appointment.
I did not know Judge Benavides until this past year. However, we have both been
representing defendants in some extremely complicated litigation in Texas. As a re-
sult of these encounters, I have had an opportunity to observe his Utigation skills,
demeanor and judgment.
In my opinion. Judge Benavides will make an outstanding appellate judge. He is
well qualified by virtue of his extensive judicial experience. More importantly, he
has the character and temperament to make an outstanding judicial officer.
Judge Benavides did not ask me to write this letter. I called him and offered to
do so, since I have been so impressed with his abilities.
Many thanks for your consideration.
Sincerely,
J. Eugene Balloun.
Senator Specter. Gene has worked with you on a case where
you were working on the same case representing defendants. He
described it as complex litigation, and Gene Balloun is an outstand-
ing man. He and I went to Russell High School together and I was
salutatorian. Do you know what that is?
Judge Benavides. I understand you made some pretty good
grades. Senator.
Senator Specter. Well, salutatorian is second, and I only men-
tion it because Balloun was valedictorian, which is first. So my last
question for you is what kind of a lawyer is Gene Balloun? [Laugh-
ter.]
You don't have to answer that.
Judge Benavides. He is an excellent lawyer.
Senator Specter. Thank you very much. Thank you, IVIr. Chair-
man.
Senator SiMON. Your appearance here evoked the information we
did not have until this point — that Arlen Specter was salutatorian
of his high school class. [Laughter.]
Senator Specter. I don't ordinarily like to admit that, but to fin-
ish second to Balloun is not too bad.
18
Judge Benavides. I will tell him that you said that. We are still
involved in that litigation, by the way.
Senator SiMON. We wish you the very best, judge. Thank you
very much.
Judge Benavides. Thank you.
Senator SiMON. Mr. Castillo? First, I want to mention, Mr.
Castillo, the American Bar Association's Standing Committee on
the Federal Judiciary unanimously gave you a "well qualified" rec-
ommendation, which is — and I don't mean this disrespectfully to
any other nominees — ^but it is exceptional for us to receive that,
and that is to your credit.
Let me ask the question that Senator Specter asked. Why do you
want to become a Federal judge?
TESTIMONY OF RUBEN CASTILLO, CHICAGO, EL, TO BE U.S.
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS
Mr. Castillo. Well, Senator, in my career I have had the privi-
lege of serving various clients from all walks of life, from some of
the corporate 100 organizations to individuals who had literally no
assets, and I have always enjoyed the role of being the advocate for
those clients, but I really came to a conclusion that I would like
to have only one client from now on, and that client being justice,
per se, and that is why I want to be a Federal district court judge.
I believe that given the variety of litigation assignments and ex-
periences that I have had that that is the best place for me to serve
the country at this point, and I really enjoyed public service from
my 4 years as an assistant U.S. attorney in Chicago.
QUESTIONING BY SENATOR SIMON
Senator SiMON. You served on a group called the Civil Justice
Reform Act Advisory Group.
Mr. Castillo. That is correct, sir.
Senator SiMON. I just read the Wall Street Journal reported on
a case. I know nothing other than the Wall Street Journal article
about this case and I don't mean to comment on the case other
than just to ask a question about what they say. There was a
woman named Irene Geschke who filed a civil lawsuit in the Fed-
eral court in the Northern District in lUinois in 1979. That case
has been continued now for 15 years. Nine scheduled trial dates
have come and gone; 530 motions, hearings, memorandums, and
orders have occurred.
Do we face a special problem in the Northern District of Illinois?
What can we do, and what more specifically can you do as a dis-
trict judge to see that justice is served? For justice to be served also
means it sometimes has to be expedited; you can't have cases going
on for 15 years.
Mr. Castillo. I agree. I am not familiar with that particular
case, but from my work with the Civil Justice Reform Act Commit-
tee in the northern district, we found overall that the court was
functioning pretty well. However, the court has a huge docket, as
you well know. There are over 400 cases per every judge in the
Northern District of Illinois.
What can we do? Our group basically concluded that we need our
judges to become managers of cases, that they have to have effec-
19
tive docket control systems so that a case as you describe — that
type of situation becomes an anomaly and just doesn't recur.
Judges need to know the status of all of their cases and need to
set orders that expedite discovery and lead to a quick resolution of
the case, and identify a case as a potential trial or as a case that
might be resolved somewhat short of a trial.
So what we basically concluded, without getting into all the spe-
cifics of our recommendations, is we want our trial judges to be ac-
tive managers and to get involved in litigation early on; call the
parties in and find out exactly why it was that a complaint was
filed in Federal district court, determine whether or not there is
adequate jurisdiction, and determine where the case is going. Is
this a case that can be resolved short of trial, or if there is going
to be a trial, let us talk about realistic dates to get to that point.
Senator SiMON. Do you think you are a good manager?
Mr. Castillo. I think I am, based on my experiences at
MALDEF and my experiences right now in my firm. I have to man-
age a number of cases, a number of people. I like to be very hands-
on, and I think those attributes will serve me well if I am con-
firmed by the Senate.
Senator Simon. If your son or daughter were to ask you what
makes a good judge, how would you respond?
Mr. Castillo. Well, I would start out with the word "p^itience,"
first, and, second, hard work. And, third, courtesy and civility to
litigants, I think, is especially important. I think every judge
should treat the litigants in their courtroom and the attorneys the
way that he or she would want to be treated if they were appearing
before that judge. I think it is very important that when a litigant
leaves a judge's courtroom, whether or not they win or lose that
case, they feel that they received a fair shake on that day.
Senator SiMON. Senator Specter?
Senator Specter. Picking up for just a moment on your comment
about courtesy, when Senator Thurmond is not able to attend a
nominations hearing, I often ask nominees a question that he
asked in one of the first hearings I attended back in 1982. There
were two Pennsylvanians up for U.S. district court and Senator
Thurmond said, do you promise to be courteous, in his Southern ac-
cent.
I thought to myself, what a meaningless question that is. What
is anybody going to say if you ask them, do you promise to be cour-
teous? Both nominees said yes, and then Senator Thurmond said,
because the more power a person has, the more courteous that per-
son should be.
I will expect the record to reflect the effort at Senator Thur-
mond's dialect. [Laughter.]
I have come to regard that as the wisest thing I have heard in
14 years that I have been here, not that there is much competition
around here for the wisest comment that I have heard. We were
in session yesterday until 3:30 a.m. and last night until 10. We
might not qualify for a position on any bench an5rwhere.
But Senator Thurmond's comment was very, very profound, and
I believe that judges, especially judges with life tenure, tend to for-
get that very fast. There is a leveling influence if you have to run
for election, and I am not suggesting that we change the Constitu-
20
tion to have Federal judges run every 6 years and have Senators
sit for Hfe, but this issue of courtesy is really important, really im-
portant.
I am unhappy with some of the stories I have heard about some
of the people whom Senator Heinz and I recommended. People will
be watching you and the word will get around, so that being cour-
teous is a very, very, very high calling. Understanding the Securi-
ties Act and the antitrust implications and the rule against per-
petuities and the difference between a shifting use and a springing
use are hard to do, but being courteous is something that you can
do, but it takes a lot of concentration.
Mr. Castillo. I completely agree. Senator. I think my mother,
who is here, has taught me the fundamental rule of treating every-
one like you would want yourself to be treated. I think she would
be the first one to remind me if she saw something going on that
didn't stick to that rule.
Senator Specter. OK, but she won't be with you all the time.
[Laughter.]
Mr. Castillo. No, but she is in spirit.
Senator Specter. You are lucky to have her.
Thank you, Mr. Chairman. Thank you. Gk)od luck.
Mr. Castillo. Thank you, Senator.
Senator Simon. We thank you.
Our hearing stands adjourned.
[Whereupon, at 11:47 a.m., the committee was adjourned.]
[Submissions for the record follow:]
21
SUBMISSIONS FOR THE RECORD
UNITED STATES SENATE
COMMITTEE ON THE JUDLCIARY
\
QUESTIONNAIRE FOR JUDICIAL NOMINEES
I. BIOGRAPHICAL IK70RMATI0M (PUBLIC)
1. Full name (include any former names used).
Audrey B. Collins
Maiden neune Audrey Anne Brodie
2. Address: List current place of residence and office address.
Current residence:
Beverly Hills, CA
Work address:
Office of the Los Angeles County District Attorney
18-201 Criminal Courts Building
210 West Temple Street
Los Angeles, CA 90012
3. Date and place of birth.
June 12, 1945
Chester, PA.
4. Marital Status. List spouse's occupation, employer's name
and business address.
Married to Timothy R. Collins since June 30, 1967.
Spouse's occupation: Dentist
Spouse's Present Employer and business address: (8/1990 -
present)
Los Angeles County Department of Health Services
Dr. Ruth Temple Health Center
3834 South Western Avenue
Los Angeles, CA 90062
22
5. Education; List each college and law school you have
attended, including dates of attendance, degrees received,
and dates degrees were granted.
Howard University, Washington, D.C.
9/63-6/67
B.A, in Political Science (1967)
American University, Washington, D.C.
9/67-1/69
M.A. in Government and Public Administration (1969)
U.C.L.A. Law School, Los Angeles, CA
9/74-6/77
Juris Doctor (1977)
6. BTnplQvment Record: List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or
employee since graduation from college.
Summer Clerk, Agency for International Development,
Washington, D.C. 7/67-8/67;
Teacher, Dunbar High School, Washington, D.C. School System,
1/69-6/69;
Substitute teacher, Vigo County, Indiana School System,
9/69-6/70;
Assistant Director, Manual High School-University of
Northern Colorado Model Cities Project, Denver, Colorado,
9/70-9/71;
Substitute teacher at John Adams Junior High School, Los
Angeles Unified School District, 5/72-6/72;
Director, Norman Topping Student Aid Fund, University of
Southern California, 9/72-8/74;
Assistant Attorney, Legal Aid Foundation of Los Angeles,
10/77-1/78;
Deputy District Attorney (Now Assistant District Attorney) ,
Los Angeles County District Attorney's Office, 1/78-present.
As part of my current position as Assistant District
Attorney, I have responsibilities for the Bureau of Crime
Prevention and Youth Services. In this connection, I am an
officer with the following non-profit foundations organized
recently to seek possible private funding for our community
outreach efforts:
Advisor, Special Assistance to Victims in Emergency (SAVE),
a non-profit foundation of the Los Angeles County District
Attorney's Office, 1992-93.
23
Secretary, Los Angeles County District Attorney's Foundation
(non-profit), 1993.
President, Los Angeles County District Attorney's Crime
Prevention Foundation (non-profit), 1993.
Military Service; Have you had any military service? If
so, give particulars, including the dates, branch of
service, rank or rate, serial number and type of discharge
received.
No.
8- Honors and Awards; List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
Honors ;
Langston Bar Association Lawyer of the Year, 1988
Honoree, Howard University Alumni Club of Southern
California, 1989
Woman of the Year, Howard University, 1967
Who's Who in American Colleges & Universities, 1967
Academic Distinctions:
Order of the Coif, 1977
Phi Beta Kappa, 1967
Dean's List, Howard University (1963-67)
Dean's List, American University (1968-1/69)
Four-year Academic Scholarship, Howard University, 1963-67
9' Bar Associations; List all bar associations, legal or
judicial-related committees or conferences of which you are
or have been a member and give the titles and dates of any
offices which you have held in such groups.
Current Bar Associations & Professional Societies:
State Bar Committee of Bar Examiners since June, 1991;
Chair, Sub-Committee on Moral Character, 1992-93; Co-Chair,
Sub-Committee on Moral Character, 1993-94
Black Women Lawyers of Los Angeles County
Trustee, Langston Bar Association of Los Angeles
National Bar Association
California Women Lawyers
3
24
Women Lawyers of Los Angeles
Los Angeles County Bar Association
Los Angeles County Bar Judiciary Committee, 1985-present
California District Attorneys' Association
The following are significant oast chairmanships and
memberships on Bar committees, professional societies or
commissions;
Deputy General Counsel, Office of the Special Advisor to the
Los Angeles Police Department Board of Commissioners,
(Hebster-Williiuns Commission) , appointed to investigate the
L.A.P.D. response to the April, 1992 civil disorders in Los
Angeles, 1992
Los Angeles County Bar Board of Trustees, 1989-91
- Member, Los Angeles County Bar Judicial Appointments
Committee, 1988-91
Member, Los Angeles County Bar Litigation Section, Inn of
Court, 1990-91
Chair, Executive Committee, State Bar Criminal Law Section,
1987-88; Advisor to the Executive Committee, 1988-90
Member, Executive Committee, Los Angeles County Bar
Association Delegation to the State Bar Annual Meeting,
1986-89
Chair, Los Angeles County Bar Criminal Justice Section,
1986-87
»«
President, Association of Los Angeles County Deputy District
Attorneys , 1984
10. Other Memberships; List all organizations to which you
belong that are active in lobbying before public bodies.
Please list all other organizations to which you belong.
I believe the following organizations to which I belong
lobby before the California State Legislature;
State Bar of California (mandatory bar association) ; Los
Angeles County Bar Association; California District
Attorneys Association; California Women Lawyers; Women
Lawyers of Los Angeles; National Bar Association; Parent-
Teacher Association. To the best of my knowledge, I do not
26
belong to any other orqanizations, with the exception of the
additional Bar associations listed in the response to /9.
11. Court Admission; List all coiurts in which you have been
admitted to practice, with dates of admission and lapses if
any such memberships lapsed. Please explain the reason for
any lapse of membership. Give the same information for
administrative bodies which require special admission to
practice.
California Bar, 12/1977
United States District Court, Central District of
California, 4/20/1982
12. Published Writings; List the titles, publishers, and dates
of books, articles, reports, or other published material you
have written or edited. Please supply one copy of all
published material not readily available to the Committee.
Also, please supply a copy of all speeches by you on issues
involving constitutional law or legal policy. If there were
press reports about the speech, and they are readily
available to you, please supply them.
I am enclosing three articles which I wrote in 1987, 1988,
and 1990, respectively, for newsletters published by the
State Bar of California. Two were written in 1987 and 1988
for Criminal Law News in my capacity as Chair of the State
Bar Criminal Law Section. The third article appeared in the
August, 1990 issue of The Minority Lawyer, published by the
State Bar's Ethnic Minority Relations Committee.
13. Health; What is the present state of your health? List the
date of your last physical examination.
Excellent. My most recent physical examination was on
August 6, 1993.
14. Judicial Office; State (chronologically) any judicial
offices you have held, whether such position was elected or
appointed, and a description of the jurisdiction of each
such court.
None.
15. Citations; If you are or have been a judge, provide: (1)
citations for the ten most significant opinions you have
written; (2) a short summary of and citations for all
26
appellate opinions where yoiir decisions were reversed or
where your judgment was affirmed with significant criticism
of your substantive or procedural rulings; and (3) citations
for significant opinions on federal or state constitutional
issues, together with the citation to appellate court
rulings on such opinions. If any of the opinions listed
were not officially reported, please provide copies of the
opinions.
Not applicable.
16. Public Office; State (chronologically) any public offices
you have held, other than judicial offices, including the
terms of service and whether such positions were elected or
appointed. State (chronologically) any unsuccessful
candidacies for elective public office.
I 2UD a member of the California State Bar Committee of Bar
Examiners, a position to which I was appointed by the State
Bar Board of Governors.
In 1992, I was also appointed as a Deputy General Counsel to
the Office of the Special Advisor to the Los Angeles Police
Department (LAPD) Board of Commissioners (Webster-Williams
Commission) , appointed to ascertain the nature of the Los
Angeles Police Department's response to the April, 1992
civil unrest in Los Angeles. The Commission interviewed
over 400 people, conducted a telephone survey, and held
meetings to assist in its determination of the effectiveness
of the LAPD's level of preparation. I was one of four
Deputy Counsel supervising an attorney team of la%ryers whose
responsibility was to conduct interviews of LAPD personnel.
In addition to describing and assessing the LAPD's response
to the civil unrest, the Commission made recommendations
designed to assist both the LAPD and the entire City of Los
Angeles in efforts to improve emergency preparedness. In
brief, the Commission recommended that the LAPD strengthen
its emphasis upon basic patrol duties, that the LAPD and Los
Angeles City as a whole pay increased attention to emergency
response planning and training, and that the emergency
operations center and communications systems for the LAPD
and the City of Los Angeles be modernized.
17. Legal Career;
a. Describe chronologically your law practice and
experience after graduation from law school including:
27
1. Whether you served as clerk to a judge, and if so
the name of the judge, the court, and the dates of
the period you were a clerk:
No clerkship.
2. Whether you practiced alone, and if so, the
addresses and dates:
No solo practice.
3. The dates, names and addresses of law firms or
offices, companies or governmental agencies with
which you have been connected, and the nature of
your connection with each:
1) Legal Aid Foundation of Los Angeles (UiFLA)
9/77-12/77 '
Administrative address:
1550 West Eighth Street
Los Angeles, CA 90017
Assistant Attorney (Agency's title for a law
school graduate who has not been sworn in as
an attorney)
2) Los Angeles County District Attorney's Office
1/78 to present
210 West Temple Street, Los Angeles, CA 90012
1/78-6/87: Deputy District Attorney
6/87-10/88: Head Deputy, Torrance Branch
Office
10/88-12/92: Assistant Director, Bureaus of
Central Operations and Special
Operations
12/92-present: Assistant District Attorney,
one of three highest ranking administrators
in an office of approximately 900 deputy
district attorneys.
b. 1. What has been the general character of your law
practice, dividing it into periods with dates if
Its character has changed over the years?
I practiced criminal law as a deputy district
attorney in court until June, 1987. I served in
preliminary hearing, misdemeanor and juvenile
prosecution units. I also negotiated cases in the
Consumer and Environment Protection Division from
July, 1980 until April, 1983. I was the Grand
Jury Legal Advisor for two years from April, 1983
to June, 1985. My next assignment was as a
28
calendar deputy in the Central Operations Division
fron July, 1985 to June, 1987.
From June, 1987 until October, 1988, I was the
Head Deputy of the Torrance Branch office of the
District Attorney's Office. I was an Assistant
Director with oversight of criminal law divisions
froB October, 1988 until December 7, 1992. As a
Head Deputy I approved charging decisions and
dispositions in major cases in the Torrance Branch
of the District Attorney's office. As an
Assistant Director, I participated in broader
policy-medcing issues, although I still made
decisions as to the filing, scope of, and
disposition of, major cases in the criminal
bureau .
Since December 7, 1992, I have been the third
highest administrator and the highest ranking
woman of color in the Los Angeles County District
Attorney's office, which is the largest local
prosecutorial office in the nation with
approximately 900 attorneys. Although the
District Attorney's office is predominantly a
criminal law office, I am cxirrently supervising
child support policies and procedures in the
Bureau of Family Support. I also oversee the
Bureau of Management and Budget and the Bureau of
Crime Prevention and Youth Services.
In addition, I have responsibility for all
Employee Relations decisions within the
department. This includes oversight of
disciplinary matters and departmental
implementation of the Americans with Disabilities
Act. I conduct Skelly hearings fSkellv v. State
Personnel Bd. (1975) 15 Cal.3d 194) in
disciplinary matters involving deputy district
attorneys, and make litigation decisions on
matters before the Los Angeles County Civil
Service Commission.
2. Describe your typical former clients, and mention
the areas, if any, in which you have specialized.
Since being sworn in as an attorney in December,
1977, I have represented one client — the People of
the State of California. As described above, I
have specialized in criminal law. Of particular
interest were my assignments to the Consumer and
Environment Protection Division, and am Legal
Advisor to the Los Angeles County Grand Jury. I
8
29
c.
have been in increasingly responsible managenent
positions since June, 1987, and am now one of two
Assistant District Attorneys.
Did you appear in court frequently, occasionally,
or not at all? If the frequency of your
appearances in court varied, describe each such
variance, giving dates.
As stated above in 17.b.l., I appeared in criminal
courts on a regular basis from January, 1978 until
June, 1987 (when I beceuae the Head Deputy of the
Torrance Branch) with the exception of the
following periods:
7/80-4/83: Assignment to Consumer and Environment
Protection Division. (I appeared in civil court
infrequently, and then often before a Commissioner
who accepted stipulated judgments.)
4/83-6/85: Advisor to the Los Angeles County
Grand Jury.
Vfhat percentage of these appearances was in:
(a) federal courts;
(b) state courts of record;
(c) other courts.
My appearances were in state courts of record
100% of the time.
What percentage of your litigation was:
(a) civil
(b) criminal
My litigation was 100% civil from July, 1980
through April, 1983, consisting of lawsuits
brought under California Business and
Professions Code Sections 17200 (unfair
business practices) and 17500 (false
advertising) .
From January, 1978 through June, 1980 and
from April, 1983 through June, 1987, my
litigation was 100% criminal.
State the number of cases in courts of record you
tried to verdict or judgment (rather than
settled) , indicating whether you were sole
counsel, chief counsel, or associate counsel.
30
I estimate that I tried approximately 200 criminal
cases to verdict, including misdemeanor jury
trials, misdemeanor and felony juvenile
adjudications (all of which are Superior Court
non-jury trials) , and felony adult court and jury
trials. I was sole counsel in all criminal cases.
5. What percentage of these trials was:
(a) jury
(b) non-jury.
Of my Superior Court adult trials, I estimate that
90% were jury and 10% non-jviry trials. All
juvenile court adjudications (estimating five per
week for nine months) were non-jury Superior Court
matters. To the best of my knowledge, my
misdemeanor trials were jury trials.
18. Litigation; Describe the ten most significant litigated
matters which you personally handled. Give the citations,
if the cases were reported, and the docket number and date
if unreported. Give a capsule summary of the substance of
each case. Identify the party or parties whom you
represented; describe in detail the nature of your
participation in the litigation and the final disposition of
the case. Also state as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or
judges before whom the case was litigated; and
(c) the individual name, addresses, and telephone numbers of
co-counsel and of principal counsel for each of the other
parties.
As a criminal trial lawyer, I gained invaluable experience
by litigating and resolving the variety of cases that are
part of the daily case load in the do*mtown criminal courts.
Although these were not high-publicity cases, I consider my
experience as a calendar deputy and regular trial deputy to
be among my most valuable assignments.
In each of the eight criminal lawsuits listed below, I was
the trial attorney for the Los Angeles County District
Attorney's Office, representing the People of the State of
California. I was co-counsel in the civil lawsuits listed
as cases 9 and 10. All eases were litigated in the Los
Angeles County Superior Court.
1. People v. Michael Ivevs
Case Number: A772038
Charge: P.C. 211 (Robbery)
Judge: The Honorable Philip F. Jones (retired)
10
31
Defense Attorney: John Martinez, Office of the Public
Defender, Rio Hondo Office, 11234
East Valley Blvd., El Monte, CA
91731; (818) 575-4174
Date of Verdict: January 24, 1986
Facts of case: The victim was walking in an alley
behind a downtown hotel when he was approached and
beaten by three individuals, one of whom was the
defendant. The defendant took the victim's wallet.
Two witnesses from the hotel came to the aid of the
victim and held the defendant for police. The other
two assailants escaped.
The jury convicted the defendant of robbery. He was
sentenced to three years in State Prison.
2. People V. Cecil Turner
Case Number: A772155
Charge: 3 counts P.C. 245(a)
(Assault by means of force likely to produce great
bodily injury and with a weapon.)
Judge: The Honorable Charles Older (retired)
Defense Attorney: James Goldstein
6454 Van Nuys Blvd., Van Nuys, CA 91401;
(818) 785-5553
Date of Verdict: February 12, 1986
Facts of case: The defendant was charged with three
counts of assault with a deadly weapon against the
three victims, who were brothers. The three brothers,
young men in their 20' s, testified that the defendant
pulled two ki .ves on one brother, and that all three
brothers eventually disarmed the defendant. One
brother was cut on his hand. However, the defendant
himself sustained fairly serious injuries, including
torn tendons on one arm. The victims never admitted
that they had inflicted these wounds on the defendant,
despite the presence of medical records.
The jury found the defendant not guilty.
3. People V. Cornelius Fredericks Banks
Case Number: A769521
Charge: P.C. 245(a)
(Assault by means of force likely to produce great
bodily injury and with a deadly weapon.) An
enhancement of great bodily injury was also
charged .
Judge: The Honorable Robert Altman
Defense Attorney: Albert E. Hopkins
11
32
1324 Wlerfleld Dr., Pasadena, CA 91105; (818)
931-1567
Date of Verdict: April 23, 1986
Facts of Case; In July, 1985, the victim was walking
with a girlfriend when the defendant, her estranged
boyfriend, approached her and allegedly slashed her
face with a knife. The victims 's credibility was
successfully attacked on several major issues during
the trial. The jury returned a not guilty verdict.
People V. Larrv Charles McKiever
Case Number: A781270
Charge: P.C. 290(b), 211; V.C. 10851
(Kidnapping for robbery, robbery, taking an
automobile without the owner's consent.)
Judge: The Honorable Paul Boland
Defense Attorney: George S. Clark
880 West 1st Street, Los Angeles, CA 90012;
(213) 617-8128
Date of Verdict: August 1, 1986
Facts of case: The defendant, along with another
suspect, jumped into the car driven by the 40-year-old
female victim. They forced her to drive from dovmtown
Los Angeles to South Central Los Angeles, where they
forced her from her car, took her wallet and her car,
and left her. The defendant was arrested driving the
victim's car two days later.
The jury found the defendant guilty of all charges. He
was sentenced to State Prise for life and to a five
year enhancement for a prior conviction.
People V. Anthony Carl Roger;
Case Number: A782730
Charge: P.C. 211 (Robbery)
Enhancement charging ue<. of a knife was also
filed.
Judge: The Honorable Miriam Vogel
Defense Attorney: Edward N. Mizrahi
Mizrahi & Geffen, ^930 La Cienega Blvd.,
#519, Inglewood, O 90301; (310) 216-0660
Date of Verdict: August 18, 1986
Facts of Case; The defendant, acting with a juvenile
co-suspect, cornered the victim, a mother out with her
baby and her young daughter. The defendant allegedly
brandished a knife and demanded money. He struck the
victim twice in the face when she was too slow in
giving him money.
12
SB
The jury found the defendant guilty of robbery. It did
not return the enhancement. The defendant was
sentenced to five years In State Prison.
6. People V. Jeffrey Forest Huahea
Case Number: A779204
Charge: P.C. 187 (Murder)
It was also alleged that the defendant personally
used a firearm.
Judge: Commissioner Ronald Hauptman
Defense Attorney: Albert DeBlanc
DeBlanc & Alexander, 5750 Wilshire Blvd.,
/555, Los Angeles, CA 90036; (213) 965-0949
Date of Verdict: January 29, 1987
Facts of case; At 2:00 a.m. one morning, the victim
and his friend drove in the friend's car to an area
where they had heard they could purchase cocaine. A
group of several people, including the defendant,
flagged them down. After some preliminary discussions
over the price of the cocaine, the defendant fired
several shots into the car at the victim, who was in
the passenger seat, and his friend. The victim was
shot five times. Although his friend drove straight to
a hospital, the victim died from multiple gunshot
wounds. The People presented eyewitness testimony
which placed the defendant at the scene with a weapon.
The jury returned a verdict of second degree murder.
The defendant was sentenced to State Prison for 15
years to life plus 2 years for the enhancement alleging
use of a gun.
7. People V. Horace Butler
Case Number: A781930
Charge: 1-3 counts H.S. 11352 (Sale of cocaine)
2 - H.S. 11379.6 (a) (Manufacture of a
controlled substance other than P.C. P.
Judge: The Honorable Robert Roberson
Defense Attorney: Herbert Barish
1007 So. Central, /208, Glendale, CA 91204;
(818) 242-7400
Date of Verdict: March 17, 1987
Facts of c^g^i The defendant was charged with three
counts of sale of cocaine to an undercover officer in
1986. The undercover officer also watched the
defendant process a piece of rock cocaine. The jury
found the defendant guilty on all four counts. He was
sentenced to four years in State Prison, which was
suspended, and to probation and county jail.
13
34
8. People V. Julv T. Dv
Case Number: A 781903
Charge: 1 coiint P.C. 487.1 (Grand theft of personal
property .
9 counts I.e. 556(a)(4) (Preparing fraudulent
insurance claims)
Judge: The Honorable Charles Older (retired)
Defense Attorney: Donald R. Schindler
Combell, Ack & Driscoll, P.O. Box 1065,
Placerville, CA 95667; (916) 622-2992
Date of Verdict: April 8, 1987
r^tcta of case; This was a fairly complicated insurance
fraud case. The total loss suffered by the insurance
company was approximately $26,000.00. The defendant, a
medical doctor and surgeon, applied for a disability
Insurance policy in 1976 in Indiana. He then moved to
California, where he had both a private practice and,
eventually, full-time employment with the Los Angeles
County Department of Health Services. In 1984, the
defendant became infected with hepatitis and was in
fact for a time unable to do surgery because of the
danger of contaminating patients. Subsequently, the
defendant contacted his insurance company. The
insurance company knew the defendant had a private
practice. However, he never disclosed to the insurance
company that he was an employee of the Los Angeles
County Department of Health Services.
The defendant submitted monthly claims for full
disability and collected monthly payments without
revealing that he was working as a full-time employee
of the Department of Health Services.
The jury convicted the defendant of all ten counts. He
was sentenced to three years probation and payment of
full restitution plus applicable fines and assessments.
9. People of the StatP- of California vs. Southern
California Edison
Case Number: C372982
Charge: Civil prosecution for violation of Business
and Professions Code Section 17200.
Judge Approving Stipulated Judgment: Judge Pro Tempore
Clinton Rodda
Co-Counsel: Deputy District Attorney, now Head
Deputy, John F. Lynch, Santa Monica
Branch Office, 1725 Main St., Santa
Monica, CA 90401, (310) 458-5341.
Defense Attorney: Mark E. Mikulka
So. Calif. Edison Co., 2244 Walnut Grove
Avenue, Rosemead, CA 91770;
14
35
(818) 302-3272
Date of Stipulated Judgment: June 30, 1981
Facts of case: This was a non-litigated but
significant civil case which resulted in a Stipulated
Final Judgment. As a civil litigator in the Consumer
and Environment Protection Division, I was one of two
attorneys assigned to a 1981 civil prosecution against
Southern California Edison (SCE) , which provides
electricity for Southern California.
SCE used transformers which contained polychlorinated
biphenyl ("PCB") , a substance regulated as a hazardous
waste under Health and Safety Code Sections 21500 et
sea. The PCBs were contained primarily in
transformers, which occasionally ruptured or leaked,
resulting in accidental spills of PCB. SCE failed to
clean up the spills in accordance with the Health and
Safety Code sections governing the handling and
disposal of hazardous waste. In addition, SCE
transported the material from the spills to hazardous
waste facilities; however, SCE did not register as a
hauler of hazardous waste as required by the Health and
Safety Code Section. The District Attorney's office
alleged that both SCE's failure to effectively clean
the PCB spills and its failure to register as a
hazardous waste hauler constituted unlawful business
practices in violation of Business and Professions Code
Section 17200.
Several months of negotiations with SCE culminated in
the June 30, 1981 filing of a Complaint and Stipulated
Final Judgment which contained the largest civil
judgment and costs ($85,400) negotiated to that date by
the Consumer and Environment Division. The Attorney
General joined in the Judgment, but all case
negotiations were handled by DDA Lynch and me. The
Final Judgment also contained an injunction which
required Southern California Edison to notify the State
Department of Health Services by the end of the first
business day following the spill, to notify customers
near the spill within twenty-four hours after the
spill, and to clean up every spill site in accordance
with all federal standards and further orders from the
State Department of Health Services.
10. People of the State of California vs. Giorgio. Inc.
Case Number: L.A. Superior Court C412556
Charge: Civil prosecution for violation of Business t
Professions Code Section 17200.
Judge Approving Stipulated Judgment: Judge Pro Tempore
Bertrand D. Mouron
15
36
Co-Counsel: DDA (now Head Deputy) John F. Lynch,
1725 Main Street, Santa Monica, CA
90401; (310) 458-5341.
Defense Counsel: David Birnbaum (then with Gibson,
Dunn & Crutcher) ; University of CA,
Berkeley, Office of General
Counsel, 291 Boa It Hall, Berkeley,
CA 94720-2499; (510) 987-9725
Date of Stipulated Judgment: Nay 28, 1982
Facts of case; Following service of simultaneous
search warrants at several Beverly Hills shops, DDA
John Lynch and I alleged unfair business practices
under Business fc Professions Code Section 17200 against
several Beverly Hills retail stores which sold
pocketbooks, belts, and other items made from
endangered species in violation of California Penal
Code Section 653 (o). Negotiations resulted in the
filing of Stipulated Final Judgments as to all the
retailers. One such judgment was reached with Giorgio,
Incorporated, which paid $7,000 in civil penalties and
costs and was subject to an injunction requiring
compliance with Penal Code Section 653 (o).
19. Legal Activities: Describe the most significant legal
activities you have pursued, including significant
litigation which did not progress to trial or legal matters
that did not involve litigation. Describe the nature of
your participation in this question. Please omit any
information protected by the attorney-client privilege
(unless the privilege has been waived.)
The most significant legal activities which I have pursued
include my criminal trial work, my civil litigation in
consumer and environment protection, my assignment as the
Legal Advisor to the Grand Jury, and the legal activities in
which I have been involved since becoming Assistant Director
and now Assistant District Attorney.
As a civil litigator in the Consumer and Environment
Protection Division, I gained valuable civil pre-trial
litigation and negotiating experience with cases in the
consumer and environmental protection area. One of the
consumer protection cases I handled was People v. La
Victoria Foods. Inc.. Los Angeles Superior Court C355633.
This was a negotiated Final Judgment including $40,000 in
civil penalties and costs against La Victoria Foods, a local
manufacturer of salsas and sauces, for unfair business
practices under Business and Professions Code Section 17200.
The violations arose from unsanitary conditions at La
16
37
victoria's food processing plant in violation of the Health
and Safety Code.
During ay tern as Grand Jury Legal Advisor, the Grand Jury
heard some of the most coaplex cases ever handled by the Los
Angeles County District Attorney's Office, including the
Twilight Zone case and the McNartin Pre-school nolestation
case. I also had the opportunity to assist the grand jurors
in their role of civil oversight of County government.
As an administrator, I have been involved in a number of
significant legal activities. While serving as a Head
Deputy and Assistant Director in three criminal bureaus, I
had the opportunity to make filing decisions and case
disposition decisions on the most significant cases within
those bureaus.
As Assistant District Attorney since December, 1992, I have
recently been involved in assisting with budget negotiations
during what is arguably the most challenging fiscal year in
Los Angeles County's history. Although this is not a legal
activity, I have gained invaluable administrative experience
as well as an understanding of the budgeting process in a
county government larger than most states. Similarly, I
supervise the Bureau of Family Support, with its separate
staff of attorneys and support staff, and its separate
budget and complex relationships with the federal and state
government .
Perhaps of most recent importance was my service as a Deputy
General Counsel on the Webster-Williams Commission appointed
to investigate the Los Angeles Police Department (LAPD)
response to the April, 1992 civil disorders. Our Commission
worked during the entire summer of 1992 to review the LAPD's
reaction to the civil uiurest. I was one of four Deputy
Counsel in charge of an attorney team which interviewed over
200 LAPD officers, ranging from patrol officers to the then
Deputy Chief for the Commission.
In addition to describing and assessing the LAPD's response
to the civil unrest, the Commission made recommendations
designed to assist both the LAPD and the entire City of Los
Angeles in efforts to improve emergency preparedness. In
brief, the Commission recommended that the LAPD strengthen
its emphasis upon basic patrol duties, that the LAPD and Los
Angeles City as a whole pay increased attention to emergency
response planning and training, and that the emergency
operations center and communications systems for the LAPD
and the City of Los Angeles be modernized.
I am a member of the State Bar Committee of Bar Examiners,
and have been the Chair of the Subcommittee on Moral
17
38
Character for the past year. Our Subcomnittee conducts
voluntary interviews of applicants whose backgrounds have
raised issues which must be resolved before their admission
to the Bar. This work has proved to be of significant value
to the State Bar and has been personally rewarding for me.
18
39
ZI. rZHAHCIAL DATA AMD COVFLICT Ot ZMTKRKST (PUBLIC)
List sources, amounts and dates of all anticipated receipts
from deferred income arrangements, stock, options,
uncompleted contracts and other futvire benefits which you
expect to derive from previous business relationships,
professional services, firm memberships, former employers,
clients, or customers. Please describe the arrangements you
have made to be compensated in the future for any financial
or business interest.
When I reach retirement age, I will receive retirement
income from the Los Angeles County Employees Retirement
Association (LACERA) and the County of Los Angeles Savings
Plan (assuming that I remain in those plans) .
Alternatively, I may "roll-over" my retirement funds into an
Individual Retirement Account (IRA) within 180 days of
terminating my employment with the County. I will also
continue to receive interest income, dividends, and capital
gain distributions as indicated on my Form AO-10.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the categories
of litigation and financial arrangements that are likely to
present potential conf licts-of-interest during yoiir initial
service in the position to which you have been nominated.
I would immediately disclose to all litigants the
potentially conflicting ownership of stocks, bonds, or
mutual funds, as well as my prior employment with Los
Angeles County and membership in the Los Angeles County
Employees Retirement Association (LACERA) and the County of
Los Angeles Savings Plan (assximing that I remain in those
plans) . I would indicate whether I considered the
particular holding to constitute a conflict of interest, and
would remove myself from any involvement with the case if I
concluded that either an actual conflict or the appearance
of a conflict of interest existed.
I do not anticipate any other sources of potential conflict.
I will, of course, follow all canons of the Code of Judicial
Conduct in reference to any potential conflict of interest.
Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during
your service with the court? If so, explain.
No.
19
40
4. List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more. (If you prefer to do
so, copies of the financial disclosvire report, required by
the Ethics in Government Act of 1978, may be substituted
here . )
Please see Form AO-10 for sources and amounts of all income
called for in this question.
5. Please complete the attached financial net worth statement
in detail (add schedules as called for) .
Please see attached.
6. Have you ever held a position or played a role in a
political campaign? If so, please identify the particulars
of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
No.
20
41
FINANCIAL DISCLOSURE REPORT
Raport Raqulrvd try thm itliic*
Rafor« Act of 1989, Pub. L. Ko.
101-194, Movwmbmx 30, 1969
(S U.S.C.A. App. 6, fSlOl-112)
1. P«rBO£) Raporclng (L«at
flzvt, OLlddla loitlal)
Collins, Audrey B.
2. Coiu-t or Orgaolzstloa
United States District Court/
Central District of Californi
3. Oat* of Raport
1/29/94
4. Tltla (Artlcla III judgas Indlcata actlva or
•aaior atatua; Naglatrata judgaa lodlcata
fall- or part-tiaa)
Nominee, district court
Raport Typa ( chack approprlata typa)
Y Hoialnatlon, Data 1 /?7/94
Initial Annual Final
6. Raportlng Parlod
1/93-1/94
7. Cbaabara or of flea Addraaa
L.A. Cbinty District Attctney's Otfioe
18-333 QrijTiiral GDurts Bailing
210 ;^5t Triple Street
e. On uia baala of tba laforaatlon coatalnad in ttala Raport, It
la. In ay opinion. In coopllanca wltii appllcabla lawa and
ragulatlona
Raviawlng Officar Slgnatura
IMPORTANT NOTES: 77k instructions accompanying this form must be fallowed. Complete all putt,
efaeddng the NONE box for each sectloo where you have no reportable information. S^ on last poge.
I. POSITIONS. (Reporting iodividual only, see pp. 7-8 of Instniaions.)
POSITION NAME OF ORGANIZATION/ENTITY
□
NONE (Ho reportAbla poaltlooa]
&'^i-a-;Tn- rHf^Hrr Ar^^mpy
I/TK flncppiss mmr^f IMstrict Attctney
Pc^icfenr.
L.A. CtaLTTEv Di3txict Attomg/'s OrinE Prevgiticn Rxrt^tion(nor>-ctD£it)/I993-94
Secrgtarv
L.A. Oxnt?/ Oistrict Attctng/'s Ftainfeticn (non-crofit), 1993-^
II. AGREEMENTS. (Reponmg individual only, see p. 8-9 of Instructions.)
DATE PARTIES AND TERMS
(ontirrBd at VIII.)
Q
NONE (No raporxable agrasaanta)
NON-INVESTMENT INCOME. (Reponing individual and spouse; see pp. 9-12 of Instructions.)
n
DATE
(Honoraria only)
SOURCE AND TYPE
NONE (Ro reportable non-invsatawnt incoDe)
nqQ?U..A. mnrYrH.:!t-Hr1- ai-1-nmpy Vg Offi np f.qpin
(1993) L.A.Cbmtv District Attomg/'s Cffioe (self)
(1994) L.k.Cnnty rH.gM-ifT Arfnmpy'.g nffirp t<=c^yf\
(1997-941 r..A. Cnr*y n=^ . nf Hm1i-h .qFrvimR i;^ajpp)
(1993) Qxy U.S.A. -Oil royalty (camtnity |-ti4.a.Ly)
GROSS INCOME
(youis, not spouse's)
S 106.812
$U4,'S2
$ 9,400(ao:rax. )
s
256
42
FINANCIAL DISCLOSURE REPORT (confd)
I of FsTBOD toporxiog
QpllirB/ Audrey B.
Data of Raport
iy29/19*i
IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.
Oncludes those u> spouse and dependent children: use the parenthetlcals '(S)" and 'pC)' to Indicate nfotUHt
iclmbuncments and gifts receiYed by spouse and dependent children, respectively. See pp.Li-15 of InitrDciloas.)
n
SOURCE
DESCRIPTION
NONE (Ho aucn nporubl* r«l»Mirn— nt» or glfu)
■ BBIBt
V OTHER GIFTS, (includes those to spouse and dencodent children; use the parenthetlcals '(S)' u
Indicate other gifts received by spouse and dependent children, respectively. See pp.l5-li of
D
SOURCE
NONE (HO aucb r«porul>l< «1CC«1
DESCRIPTION
and '(PCr *»
InslnM'hnit )
VALUE
FYgTTf
VI. LIABILITIES. Oncludes those of spouse and dependent chlldrtn; indicate where appUcable, person responsible
for liability by usine the parenthetical -(S)' for separate liability of spouse, "(J)" for joint liability of reporting
individual and spouse, and "(DC)" for liability of a dependent child, ^ee pp.lfr-18 oflnstructions.)
D
CREDITOR
NONE do r«parusi« liusiiitlM)
DESCRIPTION
VALUE CODE*
n-rT«^^n^>- Hirf^cr- nSiral-im '^TT^arpnral LCSD m-hnrTTMT fTI TiflFrt IrTTI ffT
26-VEar old sji at V!;ale Law Sctcol
VALOB OODia: J * S15.000 or !■•• K
a - 3230,001 U> ]JOD,000 o
113,001 to S30,000
isoo.ooi to $1,000,000
1, - (30,001 to S100,000
P . Mor* ttiMM (1,000,000
(100,001 ts (250,000
43
FINANCIAL DISCLOSURE REPORT (cont'd)
I of Parson Raportlng
CblliJTS> Audpgy B.
Data of Raport
1/29A9*]
VII. INVESTMENTS and TRJSTS - income, value, transactions, (includes those or spoa«
and depeadcnt chUdrcD; sec pp. 18-27 of Instructions.)
A.
(iocludlD^ tniac aetata)
Xndloata, wbaxv mmXScahlm, owoar of
ch* §»««t by usijig til* p«r*QU)«uc«l
"(J)" for lilnt omarvblp of raoort-
lAO lD4lviaaal «fi(j apcou, -(Sl^for
MMxata on«r«lilp by •pou«*. *<I>C)'
for owuArsAlp by aopaodast coilo.
Plao* *IX)* atur a^cli <a>M
•XHipc froM prior discloauro.
during
raporting
parlod
C.
Oroaa valoa
at and of
raportlng
pariod
0.
TrafiaaotloDa during rvporttsg pariod
(1)
«at.,
Coda^
-ST:
(1)
(J-P)
(J)
Valua
Hatbod,
Coda^
(9-1' 1
If not asaspt fra« dlsclouura |
Hontb.
(3)
Valua,
JdaoU^ of
{If prlvata
traaUotlan)
NONE (DO roportail.
iacoa*. assota, or
EXEMPT
EXEMPT
1
Hesicbroe, Los Anqeles, CS. (..
) c
Rent
K/M
R/V*
tat.#134-950196-3,134-100506-l
A
Intficest
J
T
&:cx.72-^?ff9-l
A
Interest
J
T
Art.#24»-88TO
A
K
T
ixl.(ra6-013D19-4Cf7
71 A
Div.
Y-
T
nVijP t (-hv R:,l,,nnprl Rrri f.71
A
Div.
J
T
7
A
Div.
.
T
S
Jans Venture Fmd, Ire. (J)
A
Div.
T
9
A
n--.
-
T
10
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20
1 XDCO«a/Cala Cod«*t A-Sl,000 or lost fi-Sl,001 to C2,5O0 C-S2,501 to 5,000 D-55,001 to $15,000
(«•• Col. Bl t D4) E-S15,001 to S50,00C F-< 0,001 tr $100,000 G-S100,001 to SI. 000, 000 H-Horo than $1,000,000
J Valua coaui J-5i5,oo4 or laaa n-s.sIdSi to 556,444 i,.j58,641 to Si64,4oo M-S164,66i ti S5S6;ao«
taa* col. Cl t D3) !l-$250,001 to $500,000 -^''00,001 tc $1,000,000 P-Hore tjian SI, 000,000
] Vain. Mathod Codaa: g-Appralaal l.-c.t'(r.al aitite fmiy) S-Haaaaaaant ' ' f-CaakAUrkai
(Saa Coi. C2) U-Boo« Valua tiar u-BatUutad
44
FINANCIAL DISCLOSURE REPORT (confd)
I of P«r»OD Raportlag
CXllinR. AitVw R,
Dat« of Baport
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (indiate pan of Report.)
I. ttaBiticTs(caTtiru33)
Ajviaor, Stedal Assistaije to VictinB in Elrergercy (SftVE' (nm-prDfit fou-tfatiai of L.A. Oxnty Dlaxlct flaxcney'3
QEfioE, 1992-93
Ttustee, Larpstm E&r Aaaxdanim of Lob Angeles, 1993 .
vn(oantinuBd)
il, Iteidgce, LC6 AnqeleB, Ca.
This residaoevos puxhased in 1971 foe $29,000(oo6t. ) ttaue^^r, that cbes not reflect its true value tatey.
I believe the currait nartet valiE to be approDciiTBtely $aX),C10O-S220,00O. (ttote: Tine asseaaed value of the
hjTE is lower than nartet valu° ir<=rar=c, r^lifccnia's Pcoxsiticn i:- has frcgm the ffpq^''^ 'J^lig nPnnwK
cured sinoe the 1970's. 1 .
IX. CERTIFICATION.
In compliance with the provisions of 28 U.S.C. § 455 and of Adviic^ Opinion No. 57 of the Advisory Committee on
Judicial Activities, and to the best of my knowledge at the time after rc.onable inquiry, 1 did not perform any adjudicatory
function in any litigation during the period covered by this report in wh I, my spouse, or my minor or dependent children
had a financial interest, as defined in Canon 3C(3)(c), in the outcome i iuch litigation.
I ceni^ that all information given above (including information pen- mg to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my knowledge ac belief, and that any information not reported was
withheld because it met applicable statutory provisions permitting non-du ,;losure.
I further certify that earned income from outside employment and hcporaria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.C.A app. 7, 5 .'^' et. seq., 5 U.S.C S 7353 and Judicial Conference
regulations.
Signature uL-^ R) (A^ Date JJiarv 29, 19»>
NOTE ANY INDIVIDUAL WHO KNOWINGLY AND WU^FULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA. Ar:-'. 6, § 104, AND 18 U.S.C S 1001.)
FILING INSTRUCTIONS:
Mail signed original and 3 additional copies to: Judicis Ethics Comminee
Admir:bmtlve Office of Uie
Un;..'4 Sutes Courts
Washii.gton, DC 20544
45
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all
assets (including accounts, real estate, securities, trusts, investments, and other
financial holdings), all liabilities (including debts, mortgages, loans, and other financial
obligations) of yourself, your spouse, and other immediate members of your household.
ASSETS
LIABILITIES
Cash on hand and in banks
U.S. Govt, securities-add schedule
Listed securities-add schedule
Unlisted securities-add schedule
Accounts and Notes receivable
Due from relatives and friends
Due from others
Doubtful
$20,601 Notes payable to banks-
secured
0 Notes payable to banks-
unsecured
$80,534 Notes payable to relatives
0
0 Notes payable to others
0
0
Real estate owned-add schedule
Real estate mortgages receivable
Autos and other personal property
Cash value-life insurance
Other assets-itemized on schedule
$655,000 Accounts and bills due
0 Unpaid income tax
$131,000 Other unpaid tax and
interest
0 Real estate mortgage
payable-add schedule
$53,510 Other mortgages and other
liens payable
0
0
0
11,802
46
Other debts-itemize
TotaJ assets
CONTINGENT LIABILITIES
As endorser, comaker or guarantor $18,230
On leases or contracts
Legal Claims
Provision for federal income tax
Other special debt
$940,645
Total liabilities
$11,802
Net worth
$928,843
Total liabilities and
$940,645
net worth
GENERAL
INFORMATION
$18,230
Are any assets pledged?
(Add schedule)
No
0
Are you defendant in any
suits or legal actions?
No
0
Have you ever taken
bankruptcy?
No
0
0
47
FINANCIAL STATEMENT
NET WORTH
SCHEDULE
USTED SECURITIES
1. Charles Schwab
Roche Holding A.G.
Schwab Money Market Fund
2. A.G. Edwards
Centennial Government Trust
3. Charles Schwab IRA-Audrey B. Collins
Cable & Wireless Spon ADRF
Hong Kong Tele, Ltd.
Merck & Co., Inc.
NovaCare
Vestar
Schwab Money Market Fund
4. Charles Schwab IRA-Timothy R. Collins (spouse)
Cable & Wireless Spon ADRF
Hong Kong Tele, Ltd.
Merck & Co., Inc.
NovaCare
Vestar
Schwab Money Market Fund
TOTAL
CASH/MARKET VALUE
$ 8,160
10,343
$16,351
4,800
6,225
3,438
3,050
1,250
4,065
4,800
6,225
3,438
3,050
1,250
4,089
$80,534
REAL ESTATE OWNED
1. Residence
Current Market Value (approximate)
2. Residential Property
Los Angeles, CA
Current Market Value (approximate)
TOTAL
$455,000
$200,000
$655,000
48
OTHER ASSETS
Mutual Funds:
Dodge & Cox Balanced Fund $4,138
Monetta Fund, Inc $278
T. Rowe Price New Asia Fund $4,821
Lindner Fund, Inc $376
Janus Venture Fund, Inc $3,373
Wasatch Growth Fund $663
Scudder Short Term Bond Fund..$7,000
Benham GNMA Income Fund $32,861
TOTAL $53,510
49
III. OEHERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar
Association calls for "every lawyer, regardless of
professional prominence or professional workload, to find
some time to participate in serving the disadvantaged."
Describe what you have done to fulfill these
responsibilities, listing specific instances and the amount
of time devoted to each.
Because of the limitations placed upon Los Angeles County
attorneys by the County Charter, I have not participated in
pro bono activities. Los Angeles County Charter Section 55
states: "The District Attorney, Public Defender, County
Counsel and their deputies shall not engage in any private
law practice, and they shall devote all their time and
attention during business hours to the duties of their
respective offices."
In 1989 I represented the District Attorney's Office on Safe
Harbors, a project sponsored by the South Central Organizing
Committee (SCOC) , United Neighborhoods Organization (UNO) ,
and East Valley Organization (EVO) to promote the safety of
our residents, especially children, in streets and parks.
We sought, but did not receive, federal funding in 1989.
I am the only woman and the only prosecutor joining the Los
Angeles Black Peace Officers Association (BPOA) in meeting
with African-American gang members in South Central Los
Angeles. The original purpose of the meetings was to
promote communication and understanding between law
enforcement and members of gangs in South Central Los
Angeles. A new objective is to find meaningful employment
for interested former gang members. These meetings are not
held during office hours.
In other community-related activities, I spoke at the Drive-
By Agony March sponsored by the mother of two murdered sons
on April 24, 1993, at the Criminal Courts Building, and at
the Interfaith Coalition to Heal L.A. meeting on March 25,
1993 at Holman Methodist Church.
The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a judge
to hold membership in any organization that invidiously
discriminates on the basis of race, sex, or religion. Do
you currently belong, or have you belonged, to any
organization which discriminates — through either formal
membership requirements or the practical implementation of
21
50
membership policies? If so, list, with dates of membership.
What have you done to try to change these policies?
I have not belonged to any such organization, to the best of
my knowledge. However, from 1965-67 I was active in my
college sorority, Alpha Kappa Alpha. Its membership
consisted of only women. I do not )cnow whether its By-laws
then, or now, restricted membership to women. I have not
been a financial member since 1967.
Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts?
If so, did it recommend your nomination? Please describe
your experience in the entire judicial selection process,
from beginning to end (including the circumstances which led
to your nomination and interviews in which you
participated) .
To the best of my )cnowledge, there is not an independent
selection commission in my jurisdiction to recommend
candidates for nomination to the federal courts. However, I
was interviewed by Senator Dianne Feinstein's Judicial
Advisory Committee for the Central District of California.
I also requested that Women Lawyers of Los Angeles evaluate
■e through their judicial recommendation process. The
organization evaluated me as "Exceptionally Well Qualified."
Senator Feinstein's Judicial Advisory Committee for the
Central District of California interviewed me in April,
1993. I was subsequently interviewed by Senator Feinstein
in her San Francisco office. Senator Feinstein's State
Director, Kam Kuwata, was also present during the interview.
I have subsequently had telephone conversations with
officials from the Department of Justice, and have met with
representatives from the Federal Bureau of Investigation and
the American Bar Association.
Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
interpreted as asking how you would rule on such case,
issue, or question? If so, please explain fully.
No.
Please discuss your views on the following criticism
involving "judicial activism."
22
51
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
siibject of increasing controversy in recent years. It has
become the target of both popular and academic criticism
that alleges that the judicial branch has usurped many of
the prerogatives of other branches and levels of government.
Some of the characteristics of this "judicial activism" have
been said to include:
a. A tendency by the judiciary toward problem-solution
rather than grievance-resolution;
b. A tendency by the judiciary to employ the individual
plaintiff as a vehicle for the imposition of far-
reaching orders extending to broad classes of
individuals;
c. A tendency by the judiciary to impose broad affirmative
duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
e. A tendency by the judiciary to impose itself upon other
institutions in the manner of an administrator with
continuing oversight responsibilities.
Criticism of "judicial activism" within the Federal
judiciary has been the subject of increasing controversy in
recent years. Although some of this criticism may be well-
founded, based upon decisions which appear to impose far-
reaching orders, much of this criticism may also be based
upon disagreements ^ith either individual rulinga or the
legislative decisiorf to increase the court's jurisdiction in
the area of Constitutional civil rights.
Because of the authority and discretion vested in the
federal district courts, it is especially critical that a
district court judge recognize the appropriate
Constitutional limitations upon the courts and follow
existing law as applied to the facts before the court. If
it appears to the public that federal jurists rule upon
their personal and political views rather than the rule of
law, public confidence in the judiciary as an independent
branch of the federal government will be diminished. In
becoming a federal district court judge, I would consider it
my duty to put aside any personal biases and beliefs and
apply the relevant law to the facts before the court.
23
52
An awareness of and willingness to follow the concepts
discussed below, which all relate to the limited
jurisdiction of the federal court, should curtail any
legitiaate criticism of the courts based upon "judicial
activism." With the courts confronted with an increasing
case load, including an expanding percentage of criminal
cases which must be tried within statutory time limits, the
federal courts must be mindful of the need for caution in
issuing rulings which would require ongoing monitoring or
review of other governmental institutions.
If confirmed as a federal district court judge, I would be
mindful of the jurisdictional limitations inherent in the
federal court system and would adhere to the following
jurisdictional precepts and limitations to avoid criticism
of the court:
Federal courts are courts of limited jurisdiction under
Article III, Section 2 of the Constitution. They can
adjudicate only those cases which the Constitution and
Congress authorize them to adjudicate. The Constitution
also limits the federal judicial power to designated "cases"
and "controversies." This helps to assure that the courts
do not intrude into areas committed to the other branches of
government. The doctrine of standing, which examines
whether the plaintiff has a redressable injury subject to
the court's jurisdiction, is an essential element of the
case-or-controversy requirement of Article III.
Lower courts are bound by the principal of stare decisis,
which is defined as meaning "to abide by, or adhere to,
decided cases." Black's Law Dictionary 1406 (6th ed. 1990).
It may be understood as the obligation to follow judicial
precedents to allow continuity and reliability in the law.
It is obviously the role of district courts to abide by the
rulings of appellate courts under this doctrine.
In summary, I have no agenda, and no preconception as to how
I would rale upon any factual scenario or legal issue other
than to apply the law as it stands to the facts at hand. As
a federal district court judge, I would seek to be fair, to
provide access to the judicial system, and to do justice
under the Constitution and laws of the United States.
24
53
QUESTIONNAIRE FOR JUDICIAL NOMINATION
UNITED STATES SENATE COMMITTEE ON THE JUDICIARY
I. BIOGRAPHICAL INFORMATION (PUBUC)
1 . Full name (include any former names used.)
Fortunato Pedro Benavides (also referred to as Pete Benavides)
2. Address: List current place of residence and office address(es).
OFFICE: 818 Pecan
McAllen, Texas 78501
HOME: 4246 Westlake Drive
Austin, Texas 78746
3. Date and place of birth.
February 3, 1947; Mission, Texas
Marital Status (including maiden name of wife, or husband's name): List spouse's
occupation, employer's name and business address(es).
Augusta Camilla (Zapffe) Benavides; nurse; Seton Home Care; 4200 North
Lamar, Austin, Texas 78756
Education: List each college and law school you have attended, including dates
of attendance, degrees received, and dates degrees were granted.
a. University of Houston (1965-1968), Houston. Texas; Received a
Bachelor of Business Administration Degree (BBA) - 1968
54
b. Bates College of Law at the University of Houston (1968-1972),
University of Houston Law Center, Houston, Texas; Received Doctor of
Jurisprudence (JD) - 1972
Employment Record: Ust (by year) all business or professional corporations,
companies, firms, or other enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were connected as an
officer, director, partner, proprietor, or employee since graduation from college.
a. 1972-1974: Associate, Rankin, Kern & Martinez (now Mullins and
Rankin, Inc.); McAllen, Texas
b. 1974: Partner, Cisneros, Beery & Benavides; fvlcAllen, Texas
c. 1975: Partner, Cisneros, Brown & Benavides; fwlcAllen, Texas
d. 1976: Partner, Cisneros & Benavides; McAllen, Texas
e. 1977: Sole Proprietor, Fortunate P. Benavides, Attorney at Law;
McAllen, Texas
f. 1977-1979: Judge, Hidalgo County Court-at-Law #2; Edinburg,
Texas
g. 1980: Proprietor, Fortunate P. Benavides, Attorney at Law; McAllen,
Texas
h. 1981-1984: Judge, 92nd District Court of Hidalgo County. Texas;
Edinburg, Texas
i. 1984-1991: Justice, 13th Court of Appeals; Corpus Christi, Texas
j. 1991-1992: Judge, Texas Court of Criminal Appeals; Austin, Texas
k. 1993: Visiting Judge to courts in Texas; by assignment of Thomas
R. Phillips, Chief Justice of the Supreme Court of Texas
I. November 1993-Present: Partner, Atlas & Hall, LLP.; McAllen,
Texas
55
Military Service: Have you had any military service? If so, give particulars,
including the dates, branch of service, rank or rate, serial number and type of
discharge received.
No
8. Honors and Awards: List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the
Committee.
a. Appointed to the Texas Juvenile Probation Commission in 1983;
Austin, Texas; Resolution and plaque for service to the youth of Texas and
to the Commission, received 1990
b. Plaque in honor of contributions to the Hispanic Women of Texas,
presented by the Hispanic Women's Network of Texas, Corpus Christi,
Texas
c. Certificate of Appreciation from St. Edward's University, Austin,
Texas; for contributions in migrant education
d. The American Bar Association at its 1992 annual convention
recognized me and awarded to me a certificate as an outstanding minority
jurist.
9. Bar Associations: List all bar associations, legal or judicial-related committees or
conferences of which you are or have been a member and give the titles and dates
of any offices which you have held in such groups.
a Member: State Bar of Texas, Austin, Texas; Member of District 12b
Grievance Committee; 1977-1982
b. Member: Hidalgo County Bar Association, Edinburg, Texas; Director
1978, 1979. 1980; President 1980-1981 term
c. Member: San Patricio County Bar Association, Sinton, Texas
d. Member: Travis County Bar Association, Austin, Texas; Member
1991-1993
S6
e. Former Member: Corpus Christ! Bar Association, Corpus Christi,
Texas
f. Member: American Bar Association
g. Member: Hispanic National Bar Association, Melville, New York
10. Other Memberships: List all organizations to which you belong that are active in
lobbying before public bodies. Please list all other organizations to which you
belong.
Organizations to which I belong active in lobbying are the American Bar
Association and the Hispanic National Bar Association. Other organizations
to which I have belonged are as follows:
a. Texas Center for the Judiciary, Inc. (non-profit organization providing
continuing education and training for the Texas Judiciary), Austin, Texas;
Member, Board of Directors 1990-1992
b. St. Michael's Episcopal Church, Austin, Texas; 1992 to present
c. St. Andrew's Episcopal Church. Corpus Christi, Texas; 1985-1991
d. St. Matthew's Episcopal Church, Edinburg, Texas; 1981-1985; Vestry
Member 1984
e. Hidalgo County Easter Seals Society for Adult and Crippled Children,
McAllen, Texas; Board of Directors 1980-1984
f. Mustangs of Corpus Christi, Corpus Christi, Texas; a community
service organization; Member 1990-1991; Honorary member 1992
g. Mexican American Demoaats of Texas, 1990-1992
1 1 . Court Admission: List all courts in which you have been admitted to practice, with
dates of admission and lapses if any such memberships lapsed. Please explain
the reason for any lapse of membership. Give the same information for
administrative bodies which require special admission to practice.
a. All Courts of the State of Texas: Admitted April 20, 1972; good
«
standing
b. United States Court of Appeals for the Fifth Circuit: Admitted March
27. 1975. On October 1, 1981. the Circuit was split The new Fifth Circuit
required reapplicatlon. However, since I was a Texas District Court Judge
at the time and the laws of Texas would not allow me to appear or plead in
court while a judge, I did not reapply.
c. United States District Court for the Southern District of Texas-
Admitted January 12. 1973. In 1985 the judges of the Southern District
determined that admission or licenses should not be renewed and required
reapplicatlon. Because I was a justice on the Texas Court of Appeals and
could not under Texas law plead or appear in court, I did not renew my
admission or license in the District Court. I did not resume the practice of
law until October 1993, and I was readmitted to practice on November 1,
12. Published Writing*;; Ust the titles, publishers, and dates of books, articles reports
or other published material you have written or edited. Please supply one codv
of all published material not readily available to the Committee. Also, please
supply a copy of all speeches by you on issues involving constitutional law or legal
policy. If there were press reports about the speech, and they are readily available
to you. please supply them.
a. 'Recent Significant Decisions of the Texas Court of Criminal Appeals
(1990-1991 Term);' published in workbook form for the Texas District and
County Attomey's Association 1991 Annual Criminal Law Update
September 25-27, 1991, Galveston, Texas. The paper was updated'
delivered and published in materials for the Texas Criminal Defense Lawyers
Assoaation, Practice Skills Course, January 16-17, 1992, El Paso Texas
Additionally, it was part of the course materials published for the Hispanic
National Bar Association 1991 meeting, San Antonto, Texas.
?, u "^'"'^'0"«;" published by the State Bar of Texas in material for the
17th Annual Advanced Criminal Law Course, August 5-9, 1991. Austin
Texas. Scott Young was the co-author. The paper was an update of the
materials prepared by Michael McCormick. Presiding Judge of the Texas
Court of Cnminal Appeals, and Carroll Wilborn. Jr.. Judge of the 344th
Judiaal District Court. Mr Young was responsible for nearly all of the work
on the updated paper; I provided editing, suggested additional topics and
cases, and orally presented the paper.
58
c. Texas Appellate Procedure-Briefs and Arguments on Appeal.' The
paper outlined the appellate procedure rules in Texas with respect to briefs
and arguments in civil and criminal cases. The article was prepared and
reproduced for the Abilene Bar Association meeting of January 3, 1992. It
was not published.
d. 'A Countdown of Cases.' A paper on the ten most significant
criminal cases decided by the Texas Court of Criminal Appeals in 1991.
The paper was delivered at the Texas Criminal Defense Lawyers
Association's Practice Skills Course in Corpus Christi. Texas, and is a part
of the Skills Course materials.
13. Health: What is the present state of your health? List the date of your last
physical examination.
Good; September 20. 1993
14. Judicial Office: State (chronologically) any judicial offices you have held, whether
such position was elected or appointed, and a description of the jurisdiction of
each such court.
a. Judge, Hidalgo County Court at Law #2, Edinburg, Texas; August
1977-December 1979; appointed 1977 by Hidalgo County Commissioners
Court; elected to full term November 1978. Jurisdiction over probate
matters, civil case over lesser amounts, eminent domain proceedings,
proceedings under mental health code and jailable misdemeanors.
b. Judge, 92nd Judicial District Court of Hidalgo County, Texas; January
1981-1984; elected in 1980 for 4-year term. Jurisdiction over felony trials,
official misconduct cases, civil cases involving greatest amounts in
controversy and suits involving titJe to realty as well as mandamus and
prohibition.
c. Justice, Thirteenth Court of Appeals; November 1984-April 1991;
appointed by Governor Mark White in 1984; elected in 1986 for unexpired
term and in 1988 for full term. The court has jurisdiction over appeals from
trial courts of record as well as mandamus and prohibition matters.
d. Judge, Texas Court of Criminal Appeals; April 1991-January 1993;
appointed by Governor Ann W. Richards in 1991. It is the court of last
6
59
resort in criminal matters. It exercises discretionary authority over decisions
of the courts of appeal. It also has jurisdiction over post-conviction writs of
habeas corpus and prohibition and mandamus action.
1 5. CitgtiQns; if you are or have been a judge, provide: (1 ) citations for the ten most
significant opinions you have written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or where your judgment
was affirmed with significant criticism of your substantive or procedural rulings- and
(3) citations for significant opinions on federal or state constitutioral issues
together with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, please provide copies of the opinions.
(1) a. NancyJohnsonv. Del Mar DistributJng Co., Inc.; 776 SW 2d 768 (Tex
App--Corpus Christi, 1989)
b. State National Bank v. Academia, Inc., et al\ 802 SW 2d 282 CTex
App-Corpus Christi, 1990)
c. Benjamin Trapnell v. Honorable Jack E. Hunter, 758 SW 2d 426 (Tex
App-Corpus Christi, 1990)
d. Thomas v. State of Texas; 821 SW 2d 618 (Tex Crim App, 1991)
e. Unscomb v. State of Texas; 829 SW 2d 164 (Tex Crim App. 1992)
f. Garcia v. State of Texas; 829 SW 2d 796 (Tex Crim App. 1992)
g. National Union Fire Insurance v. Valero Energy Corp • 777 SW 2d 501
(Tex App-Corpus Christi. 1989)
h. Estate of Herman Scott v. Victoria County; 778 SW 2d 585 fTex Add-
Corpus Christi, 1989)
i. McNamara v. Freedom Newspapers, Inc. ; 802 SW 2d 901 fTex Add-
Corpus Christi. 1991) ^^
j. Physicians and Surgeons General v. George Koblizek et ux; 752 SW
2d 657 (Tex App-Corpus Christi, 1988)
(2) a Scurlock Oil Co. v. Smithwick; 724 SW 2d 1 (Tex 1986)
The case involved a wrongful death action in which there were multiple
defendants. During the trial a settlement agreement from another case
60
involving the same defendants was improperly introduced in evidence.
Writing for the 13th Court of Appeals, I had held that the complaint on
appeal had been waived when the complaining party had used the
agreement for its own purposes. Additionally, I held that even if the
complaint was not waived, the error was not reversible error. Accordingly,
the final judgment in favor of the plaintiff was affirmed. The Supreme Court
of Texas reversed the Court of Appeals holding that the complaint had not
been waived and that the prejudicial effect of the improperly admitted
evidence required a reversal of the case, and remanded for a new trial.
b. Southern Pacific Transportation Co. v. Luna; 724 SW 2d 383 (Tex,
1987)
The action was for damages sustained at a railroad crossing collision. At
trial, the plaintiffs obtained a judgment in their favor based upon a jury
verdict. On appeal, I found that the jury finding that the failure of the
company to issue sfsecial restrictions was a proximate cause of the collision
fatality conflicted with the jury finding that the speed the train was travelling
at the time of the accident was not negligent. Accordingly, the Court of
Appeals reversed the trial court judgment. The Supreme Court of Texas
reversed the Court of Appeals tiecause it found that the two jury findings
could reasonably be construed in such a manner as to be reconciled in
favor of the judgment rendered on the jury verdict
c. Leeco Gas & Oil Co. v. Smithwick; 736 SW 2d 629 fTex, 1987)
The case involved the condemnation by a government unit of a possibility
of reverter and the damages recoverable by the owner of the reversionary
interest. The trial court allowed the condemnation and awarded nominal
damages. On appeal to the 13th Court of Appeals, and writing for the
Court, I upheld the condemnation against an attack that the government
unit was estopped to condemn a reversionary interest retained when the
government unit acquired the land by gift from its grantor (the condemnee
in the condemnation action). Additionally, I ruled that under Texas law, the
condemnee was entitled to receive only nominal damages for the taking of
his reversionary interest. The Supreme Court of Texas agreed that the
government unit was not estopped to condemn the reversionary interest;
however, the Supreme Court announced a new rule in Texas cases by
which compensation for condemnation of a reversionary interest is to be
computed when the government entity is a grantee in a gift deed.
Accordingly, the case was reversed and remanded to the trial court for a
determination of the compensation to be paid under the new rule.
d. Estate of Hanau v. Hanau; 730 SW 2d 666 (Tex, 1987)
The case involved the characterization and distribution of property under a
will. The trial court held that properties acquired by the deceased and his
61
spouse while domiciled in a common law state (Illinois) was community
property. Writing for the 13th Court of Appeals, I reversed the trial court by
holding that the property retained the character it had at the time of Its
acquisition and was not community property. I rejected the contention that
the probate code or the new rule announced in Cameron v. Cameron
allowed the trial court to reclassify the character of the property.
Additionally, I found that certain securities were not sufficientiy segregated
and traced to separate property so as to rebut the presumption of being
community property. The Supreme Court of Texas affirmed my judgment
as to the general characterization of the property. However, the Judgment
was reversed in part because the Supreme Court found the evidence was
sufficient to destroy the statutory presumption that the securities were
community property.
e. Dukes v. Migura; 770 SW 2d 568 (Tex, 1989)
The case involves a suit to recover a debt and to foreclose a lien. The
plaintiff. Delphine Migura, in a prior suit had sought a divorce claiming that
she had a common law man-iage with Mr. Migura During the pendency of
that previous suit, Joy Dukes was ceremoniously married to Mr. Migura
Mr. Migura died shortfy thereafter. After the death, Delphine Migura
amended her petition to a daim against the executrix of Mr. Migura's estate,
claiming a reimbursement from the community estate based upon her
common law marriage daim. The executoix and Delphine Migura agreed to
a judgment that declared the existence of the common law maniage;
divided the community property between Delphine and the estate, and
established a lien of $25,000 to satisfy Delphine's daim of reimbursement
against real property Mr. Migura had devised to Joy Dukes. Joy Dukes was
not a party to this previous proceeding. Delphine then brought this action
for the $25,000 debt and foredose of lien on the real property devised to
Joy. The trial court granted Delphine judgment for foredosure of the debt
and foredosure of the lien. Writing for the 13th Court of AppeaJs, I reversed
the trial court, holding that since Joy was not a part of the action that
created a lien on her property, the agreed judgment sought to be enforced
was void as to Joy Dukes. The Supreme Court reversed the judgment of
the Court of Appeals, holding that an action to enforce a lien does not
involve titie to realty and Joy Dukes was not a necessary party to the prior
suit The judgment of the trial court was reinstated.
f. State V. Moreno; 807 SW 2d 327 (Tex Crim App, 1991)
The case involves the question whether the State of Texas had the statutory
right to appeal a trial court's order dismissing an information. The trial court
had sustained a motion to quash that complained of the specificity of the
Information but had refused to sign an order speciflcaify dismissing the
case. Writing for the 13th Court of Appeals, I affimned the toial court, based
9
62
on the applicable statutory provision and previous Texas case law on that
issue. The Texas Court of Criminal Appeals reversed based on the
construction of a similar federal rule and determined that the quashing of
the indictment effectively terminated the prosecution; and accordingly
determined that the State had the right to appeal the granting of a motion
to quash.
g. Rodriguez v. State; 804 SW 2d 516 (Tex Grim App, 1991)
This case involves the question of vi^ether it is the State or an accused who
has the burden to show diligence in prosecuting a motion to revoke
probation. The motion to revoke was filed and the arrest warrant was
issued before the expiration of the defendant's probationary period.
However, the arrest warrant was executed and the hearing on the state's
motion was heard after the probationary period had expired. I affirmed the
trial court, holding that the timely filing of the motion and issuance of the
warrant gave the trial court jurisdiction over the proceeding and it was
incumbent upon the defendant to develop and carry the burden on the
issue of the State's failure to use due diligence. The Texas Court of
Criminal Appeals reversed, holding that once the issue of due diligence was
raised, the State had the burden of proof on the issue and having failed to
meet its burden, the trial court was without jurisdiction to revoke the
defendant's probation.
h. Williams v. State; 851 SW 2d 282 (Tex Crim App. 1983)
This case involves the question of which party has the burden to produce
evidence and the burden of persuasion on the exception to the punishment
provided for the offense of aggravated kidnapping (V.T.C.A. Penal Code,
section 20.046). The defendant was convicted of aggravated kidnapping
and aggravated sexual assault and assessed a life sentence for each
offense. Writing for the 13th Court of Appeals, I affirmed the trial court
judgment and sentence for aggravated sexual assault and reversed the
aggravated kidnapping conviction, finding egregious error in the trial court's
improperly instructing the jury with respect to the provisions of section
20.046. In a case of first impression, the Court of Appeals' opinion placed
the burden of production and persuasion on the State. TTie Court of
Criminal Appeals agreed that the instruction given the jury was in error but
did not believe the error to be egregious. Egregious error is necessary in
Texas to reverse a conviction in a criminal case where the error is in the
charging instrument and no objection is made in the trial court The Court
of Criminal Appeals also determined that the burden of production was on
the accused, not the State, but it did agree that the burden of persuasion
was on the State. Finding no egregious error, the opinion of the Court of
Appeals was reversed as to the aggravated kidnapping case and affirmed
as to the aggravated sexual assault case.
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63
(3) See list of citations attached for opinions touching federal or state
constitutional issues.
16. Public Office: State (chronologically) any public offices you have held, other than
judicial offices, including the terms of service and whether such positions were
elected or appointed. State (chronologically) any unsuccessful candidacies for
elective public office.
a. 1983-1989, Commissioner, Texas Juvenile Probation Com.nission;
appointment by Governor Mark White
b. I was unsuccessful in seeking election for a full term to the Texas
Court of Criminal Appeals in the general election held November of 1992.
17. Legal Career:
a. Describe chronologically your law practice and experience after graduation
from law school including:
1. whether you served as clerk to a judge, and if so, the name of the
judge, the court, and the dates of the period you were a clerk;
I did not serve as a clerk to a judge.
2. whether you practiced alone and, if so, the addresses and dates;
(a) 1977: Sole Practice of Law; 1011 Pecan Street, McAllen,
Texas 78501
(b) 1980: Sole Practice of Law and of Counsel to Yzaguirre,
Chapa & Trevino; 821 Nolana, McAllen, Texas 78504
3. the dates, names and addresses of law firms or offices, companies
or governmental agencies with which you have been connected, and the
nature of your connection with each;
(a) 1972-1974: Associate, Rankin, Kern & Martinez (now Mullins
& Rankin, Inc.); 804 Pecan Street, McAllen, Texas 78501
(b) 1974: Partner, Cisneros, Beery & Benavides; W. Erie Street,
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64
McAllen, Texas 78501
(c) 1975: Partner, Cisneros, Brown & Benavides; 1011 Pecan
Street, McAllen, Texas 78501
(d) 1976: Partner. Cisneros & Benavides; 1011 Pecan Street.
McAllen, Texas 78501
(e) 1977-1979: Judge, Hidalgo County Court at Law #2; Hidalgo
County Courthouse, Edinburg, Texas 78539
(f) 1981-1984: Judge. 92nd District Court of Hidalgo County,
Texas; Hidalgo County Courthouse, Edinburg, Texas 78539
(g) 1983-1989: Commissioner. Texas Juvenile Probation
Commission; 2015 South IH 35, Austin, Texas 78741
(h) 1984-April 1991 : Justice, Thirteenth Court of Appeals; Tenth
Roor, Nueces County Courthouse, Corpus Christi, Texas 78401
(!) May 1991 -December 1992: Judge, Texas Court of Criminal
Appeals; Supreme Court Building, Austin, Texas 78711
0) 1993: Visiting Judge, by appointment of Thomas R. Phillips,
Chief Justice of the Supreme Court of Texas
(k) November 1993-present: Partner, Atlas & Hall. LLP.; 818
Pecan, PC Box 3725, McAllen, Texas 78502-3725
1. What has been the general character of your law practice, dividing
it into periods with dates if its character has changed over the years?
During the first two years of practice, approximately 80% of
my work was devoted to civil litigation. Approximately 10% of my
work was devoted to criminal matters in the State and federal courts,
and the remaining 10% was devoted to work for the city of McAllen.
city of Mission, and to serving as general counsel for the Pharr, San
Juan, Alamo Independent School District. Beginning in the summer
of 1974. and until 1977 and in the year 1980, the percentage of
criminal work in the State and federal courts increased to
approximately 45% of my caseload. During this time, approximately
45% of my work included civil law and civil litigation and 10% was
devoted to representing the Pharr, San Juan, Alamo Independent
School District and serving as trial counsel for the Hidalgo County
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65
Child Welfare Agency (now the Department of Human Resources,
Child Protection Sen/ices, Hidalgo County Unit).
2. Descritje your typical former dients and mention the areas, if any, in
which you have specialized.
Because my practice was varied and in tioth the civil and
criminal law areas, I do not have a truly typical client. I participated
in land disputes, family law matters, tort defense, tort prosecution,
election contests, contract disputes, proljate disputes, school law
matters, etc... Many of my clients were also charged with crimes, a
number of whom were indigent. During the first two years of practice
my clients were more likely to be a middle- to upper-income
businessman, professional person, or corporate client whose case
had been assigned to me by one of the senior partners at Rankin,
Kern & Martinez. After leaving that law firm, my clients more likely
were lower- to middle-income with family law or contractual law
problems. I represented the Phan*. San Juan, Alamo Independent
School District as general and trial counsel almost continuously
throughout my period in private practice.
1 . Did you appear in court frequently, occasionally, or not at all? If the
frequency of your appearances in court varied, describe each such
variance, giving dates.
Frequently
2. What percentage of these appearances was in:
(a) federal courts
(b) state courts of record
(c) other courts
3. What percentage of your litigation was:
(a) Civil
(b) Criminal
4. State the number of cases in courts of record you tried to verdict or
13
1972-1974
3%
1974-1977, 1980
30%
1972-1974
93%
1974-1977, 1980
70%
1972-1974
4%
1974-1977, 1980
0%
1972-1974.
85%
1974-1977, 1980:
50%
1972-1974:
15%
1974-1977, 1980:
50%
66
judgment (rather than settled), indicating whether you were sole counsel,
chief counsel, or associate counsel.
Sole Counsel 28
Chief Counsel 4
Associate Counsel 30
5. What percentage of these trials was:
(a) jury 34%
(b) non-jury 66%
18. LJtigation: Describe the ten most significant litigated matters which you personally
handled. Give the citations, if the cases were reported, and the docket number
and date if unreported. Give a capsule summary of the substance of each case.
Identify the party or parties whom you represented; describe in detail the nature
of your participation in the litigation and the final disposition of the case. Also state
as to each case:
a. the date of representation;
b. the name of the court and the name of the judge or judges before whom
the case was litigated; and
(c) the individual name, addresses, and telephone numbers of co-counsel and
of principal counsel for each of the other parties.
1. USA V. Bamiro Gonzalez, 559 F 2d 1271 (5th Cir, 1977). In 1976. 1
assisted my law partner, Joe A. Cisneros, at trial. I appealed the conviction
and secured reversal in 1977. The case was tried to a jury before Judge
Owen D. Cox, Jr. (deceased) and, on appeal, was heard before Judges
Thornberry, Ainsworth, and Roney.
The accused was charged with conspiracy with intent to distribute
marijuana. The prosecution's case depended on the testimony of an
alleged co-conspirator who refused to testify at trial. His grand jury
testimony was used at trial to secure a conviction at trial. I undertook the
appeal and wrote the appellate brief. On appeal, I was able to show that
the statements of the co-conspirator were not against his interest, nor did
they have an equivalent guarantee of trustworthiness. The testimony did
not qualify as an exceptbn to the hearsay rule.
Co-counsel at trial: Joe A Cisneros, 3827 North 10th Street, McAllen,
Texas; (512) 282-1883
Opposing counsel at trial: George A. Kelt, Assistant US Attorney, Suite 900,
440 Louisiana Street Houston. Texas 77002; (713) 238-9519
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67
Opposing counsel on appeal: Mary L Sinderson, former Assistant US
Attorney, Houston, Texas
2. State V. Jesus Cruz, #0-611 in the 139th District Oourt of Hidalgo
Oounty, Texas. The judge was Fidencio M. Guerra, Jr. and the trial was
January 10-14, 1977.
I represented, as sole counsel, the accused who was charged with
aggravated assault on a peace officer. The accused turned down an offer
to plead to a misdemeanor assault charge, insisting that he had acted in
self-defense. My investigation revealed that the alleged victim, a peace
officer, had sexual relations with a girl who was with the accused at the time
of the alleged offense. The accused had been an MP in Vietnam and the
alleged victim had to be hospitalized from a blow delivered by the accused.
The jury believed the accused. I understand that one of the police officers
was reprimanded and/or excused as a result of the matters revealed at triall
Opposing counsel: Joe A. Conners, Assistant District Attorney (now in
private practice, 804 Pecan Street, McAllen, TX 78502 [512-687-6217])
3. State V. Elias Juarez, #B-765 in the 93rd District Court of Hidalgo
Oounty, Texas. Tried in 1977, the trial judge was Magus F. Smith, Jr.
(deceased).
In the aftermath of a well-publicized murder trial in Hidalgo Oounty, Texas,
the accused was charged with tampering with a v^ntness. Mr. Juarez, a
former investigator with the Hidalgo Oounty Sheriffs Office, had been hired
as an investigator by an attorney for the accused murderer. I understand
that Mr. Juarez was so adept at his work that he was able to locate and
interview a number of witnesses even before the local police authorities.
Although the State was successful in the murder prosecution (I was not an
attorney in the murder case), it nonetheless sought and obtained an
indictinent against Mr. Juarez for jury tampering. I was sole counsel for Mr.
Juarez and tried the case before a jury, which acquitted my client
Opposing counsel: Rdencio M. Guerra, Jr., now Judge of the 370th Disti-ict
Oourt, Hidalgo Oounty Oourthouse, 100 North Olosner, Edinburg, Texas
78539; (210) 318-2280
4. Garcia v. Pharr, Sa/j Juan, Alamo Independent School District
(PSJA), Oase No. 1 1073, 1390i Distiict Oourt, Hidalgo Oounty, Texas. Tried
and disposed of on motion January 10, 1974. The toial judge was Meriin
Johnson. The case is reported at 512 SW 2d 636.
I was sole counsel for PSJA. Mr. Garda filed suit alleging violation of his
civil rights when he was discharged as a teacher for running for office in
violation of school policy. After discovery, I secured a judgment dismissing
the case on the basis, among others, that he could not bring suit because
he had not exhausted his administrative remedies. The case was appealed
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68
and the judgment was affirmed.
Opposing counsel: Filemon B. Vela, now US District Judge, Federal
Courthouse, 500 East 10th Street, Brownsville, Texas 78520; (210) 548-2500
5. Sanchez v. Brandt, No. D-473, 20eth District Court of Hidalgo
County, Texas. Tried in the spring of 1977, judgment was signed July 1,
1977. The judge was Joe B. Evins, Hidalgo County Courthouse, Edinburg,
Texas.
I was sole counsel for Brandt, who had sold rural property by contract of
sale to Sanchez. Mr. Sanchez lived in Illinois and had another residence in
Mission, Texas. Brandt sought to declare forfeiture and Sanchez claimed
a violation of a Texas statute dealing with notice of default and forfeiture on
property on which the vendee resides. The jury found for Mr. Sanchez.
The trial court nevertheless granted a judgment non obstante veredicto on
the basis that the statute did not apply to unimproved rural property on
which the vendee did not actually live or occupy. Unfortunately for Mr.
Brandt, the case was reversed on appeal, and the appeal is reported at 567
SW 2d 254.
Opposing counsel: George Powell, 5921 North 23rd, McAllen, Texas 78501 ;
(210) 686-2413
6. Estate of Zamora v. Rodriguez, 517 SW 2d 838 (Tex App-Corpus
Christi, 1975). The judge was Walter Kelly, Hidalgo County Court at Law.
I was sole counsel for Mrs. Rodriguez, who was the subject of eviction
proceedings brought by the Zamora Estate. I undertook the case after the
justice court had ordered her eviction. I filed an appeal, which was
dismissed as untimely by the County Court at Law judge. I undertook a
pro-bono appeal and the Court of Appeals reversed the County Court at
Law and reinstated the forcible detainer action in the County Court.
Opposing counsel: Ralph Vidaurri, P.O. Box 787, 1221 South 14th,
Edinburg, Texas 78540; (512) 383-2467
19. Legal Activities: Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters that
did not involve litigation. Describe the nature of your participation in this question,
please omit any information protected by the attorney-client privilege (unless the
privilege has been waived).
While a District Judge in Hidalgo County, I took on responsibility for
establishing a residential facility for juvenile offenders. I was able to acquire
commitments from the commissioners' court for a facility, funding from the
State of Texas, and the county for equipment, improvement of facilities and
16
69
the operation of the facility. In addition, I had to secure permission from the
City of Weslaco. The Ramiro Guerra Youth Center is still operating with
room for 52 male juveniles. In addition, I am assured that efforts are being
taken by the local authorities now in charge to expand the facility to house
young female offenders.
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated receipts from deferred income
arrangements, stock, options, uncompleted contracts and other future benefits
which you expect to derive from previous business relationships, professional
services, firm memberships, former employers, clients, or customers. Please
describe the arrangements you have made to be compensated in the future for
any financial or business interest.
None, except for retirement benefits due me from the Texas
Employees Retirement System. The amounts due are dependent on
whether I draw benefits upon realizing the age of 55 or 60 years. Because
I served continuously for over 12 years, I should receive 50% of the amount
then paid to a judge on the Texas Court of Criminal Appeals tf I retire at age
55, and 60% of such amount if I retire at age 60 (the annual pay of a judge
on the Texas Court of Criminal Appeals is preserrtly in the neighborhood of
$90,300.00). Additionally, I own a 1/3rd undivided interest in 10 acres of
land in Hidalgo County with two individuals. I expect that, upon the sale of
the land, I will recover 1/3rd of the proceeds.
2. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern. Identify the
categories of litigation and financial arrangements that are likely to present potential
conflicts of interest during your initial service in the position to which you have
been nominated.
Lawyers of cases on appeal should disclose names of all lawyers
and parties with an interest in a case so that a justice can determine
vtrhether he has a financial interest in the case, or a family or financial
17
70
interest with a party. In addition, the issues in the case should be examined
to determine whether the resolution of the issues will likely affect the
financial interest of the justice. If an examination reveals a conflict or
appearance of impropriety, I would voluntarily recuse myself. In addition,
I would adhere to the Canons of the Code of Conduct for Judges and abide
by the directives and advisory opinions of the Committee on the Codes of
Conduct I am aware of no areas of litigation that would be likely to present
themselves which would create a conflict of interest by my initial service.
Do you have any plans, commitments, or agreements to pursue outside
employment, with cr without compensation, during your sen/ice with the court?
If so, explain.
No
List sources and amounts of all income received during the calendar year
preceding your nomination and for the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties, patents, honoraria, and other items
exceeding $500 or more. (If you prefer to do so, copies of the financial disclosure
report, required by the Ethics in Government Act of 1978, may be substituted
here.)
1993 SOURCES OF PERSONAL INCOME
State of Texas
a. Court of Criminal Appeals
b. Services as Visiting Judge
Nueces County, Texas
El Paso County, Texas
Bexar County, Texas
Bee County, Texas
San Patricio County, Texas
Brooks County, Texas
Atlas & Hall, McAllen, Texas
Texas Commerce Bank, Austin
8,282.38
Salary
41,881.45
Salary and per diem
613.27
Supplemental pay and
expenses for Visiting Judge
1,998.59
Same as above
1,079.58
Same as above
823.44
Same as above
887.72
Same as above
665.28
Same as above
36,833.00
Salary
682.93
Interest
1994 SOURCES OF PERSONAL INCOME
Atlas & Hall, McAllen, Texas 28,666.64 Salary
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Please complete the attached financial net worth statement in detail (Add
schedules as called for).
Attached.
Have you ever held a position or played a role in a political campaign? If so,
please identify the particulars of the campaign, including the candidate, dates of
the campaign, your title and responsibilities.
I have not, except for my own campaigns as a candidate for office as
follows:
a. 1978: I ran unopposed for Judge of the Hidalgo County Court at
Law No. 2.
b. 1980: I ran and secured the Democratic party nomination for Judge
of the 92nd District Court of Hidalgo County, Texas against two opponents.
I ran unopposed in the 1980 general election.
c. 1988: I ran unopposed for a full term as a justice on the 13th Court
of Appeals of Texas.
d. 1992: I ran for a full term on the Texas Court of Criminal Appeals.
I was unopposed in the Democratic party primary, but I was defeated at the
November general election.
III. GENERAL (PUBUC)
1. An ethical consideration under Canon 2 of the American Bar Association's Code
of Professional Responsibility calls for "every lawyer, regardless of professional
prominence or professional workload, to find some time to participate in serving
the disadvantaged." Describe what you have done to fulfill these responsibilities,
listing specific instances and the amount of time devoted to each.
a. I appealed a case pro-bono {Estate of Zamora v. Rodriguez, 51 7 SW
2d 838 (Tex App, 13th District 74) for a woman who was being removed
from her residence. The time spent on this appeal was three days.
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72
b. I served as a director of the Easter Seals Society for adults and
crippled children in McAllen, Texas. I attended monthly meetings and
helped advise the organization is its policies and practices. I spent four
years with this organization.
c. i appeared in dvil cases while as lawyer on numerous occasions pro-
bono and accepted State court appointments to represent indigents
accused of crimes.
The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any organization
that invidiously discriminates on the basis of race, sex. or religion. Do you
currently belong, or have you belonged, to any organization which discriminates -
- through either formal membership requirements or the practical implementation
of membership policies? If so, list, with dates of memljership. What have you
done to try to change these policies?
I am not presently a member of any such organization. At the
University of Houston from 1965 to 1968, I was a memt>er of a college-
sanctioned national sodal fraternity: Phi Sigma Kappa. Only males were
allowed membership and I have not made any effort to change the policies.
Additionally, in 1990 1 was invited and joined a voluntary service organization
in Corpus Christi, Texas, known as the Mustangs of Corpus Christi.
Although I am not familiar with its rules or by-laws, there were no female
members. The sole activity of the organization was to donate food, cook
the barbecue, and serve the food and barbecue at fund-raising dinners held
on behalf of charitable, civic, and educational groups or organizations. It
did not solicit money or sell tickets, but simply donated, cooked, and
served. I made no effort to change the policy if indeed one exists. I left the
organization in 1991 when I moved to Austin and I was listed as an
honorary member in 1992.
3. Is there a selection commission in your jurisdiction to recommend candkjates for
nomination to the federal courts? If so, did it recommend your nominatksn?
Please descrilje your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nominatkxi and
interviews in which you participated).
I am not aware of the existence of a selection committee in Texas for
nomination to the U.S. Court of Appeals for the Fifth Circuit. Around mkj-
August of 1993, 1 received an inquiry from a friend as to whether I would be
interested in a position on the Fifth Circuit. On Thursday, September 9.
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73
1993. I received a call from the White House Counsel's office. I was
advised that the President was considering my appointment to the Frfth
Circuit and that certain forms would be sent to me. in November of 1993,
I was interviewed by Ron Wain, an Assistant Counsel to the President, and
also by Bernard Nussbaum, the White House Counsel, and other members
of the President's staff. I have submitted information to and have been
interviewed by the Federal Bureau of Investigation and the American Bar
Association. I have also submitted information to the U.S. Department of
Justice.
4. Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any specific case, legal issue or question in a manner that
could reasonably be interpreted as asking hovy you would rule on such case, issue
or question? If so, please explain fully.
No
5. Please discuss your views on the foilowi ig criticism involving "judicial activism."
The role of the Federal judiciary within \re Federal government, and within society
generally, has become the subject of increasing controversy in recent years. It has
become the target of both popular an;;l academic criticism that alleges that the
judicial branch has usurped many of th(j prerogatives of other branches and levels
of government.
Some of the characteristics of this "jutlicial activism" have been said to include:
a. a tendency by the judiciary towiird problem-solution rather than grievance-
resolution;
b. a tendency by the judiciary to employ the individual plaintiff as a vehicle for
the imposition of far-reaching orders extending to broad classes of individuals;
c. a tendency by the judiciary to impose broad, affirmative duties upon
governments and society;
d. a tendency by the judiciary toward loosening jurisdictional requirements
such as standing and ripeness; and
e. a tendency by the judiciary to impose itself upon other institutions in the
manner of an administrator with continuing oversight responsibilities.
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74
It is the function of the courts to resolve disputes arising between
parties to litigation. Certainty a problem must exist in order for there to be
a dispute. However, the courts should be careful to resolve issues
according to law and with an understanding of the respective role of the
executive and legislative branches. Courts should be aware of the
differences between their own desire and beliefs and those required by the
laws of the legislature and the Constitution. If not, the courts jeopardize
representative government. The cornerstone of our way of life is
democracy, not judicial oligarchy.
The judiciary she jld resolve the issues and controversy between the
parties to litigation (and not others not a part of the proceedings).
However, because precedent is (and should be) an important and well-
established component of our law. It follows that rulings will tend to extend
to and effect others not a part of the case. The reliance on precedent
provides a stability and predictability necessary to the civil, criminal,
contract, and commercial law. People need to know what the rules are and
expect others to follow them. Courts must insist on maintaining the integrity
of their orders by being able to enforce their decisions, but should exercise
care that an individual in not denied his day in court.
When the government or society has a broad, affirmative duty
imposed by the Constitution or by lawful legislative statutes, the judge must
declare that duty when called upon in a proper case. The imposition of
such duties when they ariseshould come from the law. A court is
cowardly if it does not enforce the law. A court usurps its role in our
constitutional democracy when it imposes any duty, broad or narrow, not
required by law or necessary to carry out the law.
I believe traditional rules for ripenesand standing are necessary to
Insure that the proper parties with an existing dispute come before the court
and so that the courts may avoid injecting themselves into our system as
the arbiters of emerging policy. Courts are not well suited to be
administrators. The judicial and executive branches should, for the most
part, be afforded an opportunity to correct problems. Only when an
individual or institution is recalcitrant or unwilling to perform its legal duties,
should the court as a last resort, and then only for the shortest period to
insure lawful compliance, undertake the administration of an institution.
Even then, such should not be a general administration, but only measures
necessary to effectively protect the rights established by the Constitution
and by Congress.
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ATTACHMEMT RELATED TO PART I. IHQDIRY 15(3)
Texas Cases, 691-B54 S.W.2d
Results only
Query: ju (benavides) t constitution!
Docunentt
CITATION
COURT/ YEAR
TITLE
853 S.W.2d 527 (Tex.Cr.App. 1992)
848 S.W.2d 126 (Tex.Cr.App. 1992)
843 S.W.2d 586 (Tex.Cr.App. 1992)
834 S.W.2d 357 (Tex.Cr.App. 1992)
831 S.H.2d 331 (Tex.Cr.App. 1992)
829 S.W.2d 164 (Tex.Cr.App. 1992)
829 S.W.2d 191 (Tex.Cr.App. 1992)
829 S.W.2d 796 (Tex.Cr.App. 1992)
828 S.W.2d 1 (Tex.Cr.App. 1992)
823 S.W.2d 284 (Tex.Cr.App. 1991)
823 S.W.2d 660 (Tex.Cr.App. 1992)
821 S.W.2d 616 (Tex.Cr.App. 1991)
819 S.W.2d 806 (Tex.Cr.App. 1991)
817 S.W.2d 64 (Tex.Cr.App. 1991)
817 S.W.2d 77 (Tex.Cr.App. 1991)
815 S.W.2d 560 (Tex.Cr.App. 1991)
815 S.W.2d 656 (Tex.Cr.App. 1991)
807 S.W.2d 8 ( Tex. App. -Corpus Christi
807 S.W.2d 878 (Tex. App. -Corpus Christi
806 S.H.2d 900 (Tex. App. -Corpue Christi
803 S.W.2d 808 (Tax. App. -Corpus Christi
802 S.W.2d 386 (Tex. App. -Corpus Christi
802 S.W.2d 901 (Tex. App. -Corpue Christi
801 S.W.2d 12 (Tex. App. -Corpus Christi
800 S.W.2d 320 (Tex. App. -Corpus Christi
797 S.W.2d 243 (Tex. App. -Corpus Christi
797 S.W.2d 272 (Tex. App. -Corpus Christi
791 S.W.2d 226 (Tex. App. -Corpus Christi
789 S.H.2d 688 (Tex. App. -Corpus Christi
785 S.W.2d 426 (Tex. App. -Corpus Christi
780 S.W.2d 497 (Tex. App. -Corpus Christi
779 S.W.2d 83 (Tex. App. -Corpus Christi
779 S.W.2d 884 (Tex. App. -Corpus Christi
778 S.W.2d 585 (Tex. App. -Corpus Christi
774 S.W.2d 771 (Tex. App. -Corpus Christi
772 S.W.2d 271 (Tex. App. -Corpus Christi
771 S.W.2d 573 (Tex. App. -Corpus Christi
769 S.w.2d 661 (Tex. App. -Corpus Christi
768 S.W.2d 755 (Tex. App. -Corpus Christi
767 S.W.2d 197 (Tex. App. -Corpus Christi
764 S.W.2d 846 (Tex. App. -Corpus Christi
764 S.W.2d 903 (Tex. App. -Corpus Christi
763 S.w.2d 38 (Tex. App. -Corpus Christi
761 S.W.2d 549 (Tex. App. -Corpus Christi
760 S.W.2d 681 (Tex. App. -Corpus Christi
760 S.W.2d 778 (Tex. App. -Corpus Christi
752 S.W.2d 734 (Tex. App. -Corpus Christi
750 S.H.2d 906 (Tex. App. -Corpus Christi
738 S.W.2d 378 (Tex. App. -Corpue Christi
736 S.W.2d 134 (Tex. App. -Corpus Christi
Johnson v. State
Nelson V. state
Chavez v. State
Arcila V. State
Draughon v. State
Linsconb v. State
Fuller V. State
Garcia v. State
Phynes v. State
Ex parte Bower
Greenwood v. State
Thomas v. State
Hernandez v. State
State V. EngelJcing
Ex parte McGee
Lewis V. State
Ellason V. State
Castillo V. State
Burns v. State
Estate of Hanau, In re
Olson V. Central Power and. .
Poindexter v. State
McNanara v. Freedom Newspa..
£x parte Haskin
State By and Through Matto. .
Smith V. State
Lopez V. State
Villegas v. State
wisenbarger v. Gonzales Wa. .
Trapnell v. Hunter
Martin v. State
City of Robstown v. Barrera
Rodriguez v. State
Estate of Scott v. Victor i..
Hargrove v. State
State V. Benavides
Fishman v. State
State v. Moreno
Southwestern Bell Telephon. .
King v. Bauer
Burns v. State
Gunther v. State
state V. Brady
McKinney v. State
Guerra v. State
Hosey v. State
Reyes v. State
Garcia Rodriguez v. State
Roe v. State
Town of South Padre Island..
76
Texas Cases, 691-854 S.W.2d
Results only
Query: ju(benavideE) i constitution!
Docur.ents
CITATION
COURT/ YEAR
TITLE
716
716
707
706
704
703
698
697
697
697
,W.2d
.W.2d
,H.2d
.W.2d
.W.2d
,H.2d
,W.2d
.W.2d
,W.2d
693 S
2d
2d
578
615
171
717
397
708
435
702
753
774
528
(Tex.App.
(Tex.App.
(Tex.App.
{Tex.App.
(Tex.App.
(Tex.App.
(Tex.App.
(Tex.App.
(Tex.App.
(Tex.App.
(Tex.App.
-Corpus Christi
-Corpus Christi
13 Oist. 1986)
13 Dist. 1986)
13 Dist. 1985)
13 Dist. 1985)
13 Dist. 1985)
13 Dist. 1985)
13 Di3t. 198j)
13 Dist. 1985)
13 Dist. 1985)
, . Corpus Christi Taxpayer's ...
, . Leeco Gas ( Oil Co. v. Nue...
Esterline v. State
Chase V. State
Chaires v. State
Wyatt V. General Motors Corp.
Vista Chevrolet, Inc. v. B
Dill V. state
A. Wolfson's Sons, Inc. v....
Sattervhite v. State
Botello V. state
Texas Cases, 481-690 S.H.2d
Results only
Query: ju(benavides) ( constitution!
Documents
CITATION
COURT/ YEAR
TITLE
688 S.W.2d 631 (Tex.App. 13 Dist. 1985)
687 S.W.2d 114 (Tex.App. 13 Dist. 1985)
Sinast V. state
Jones V. State
77
ATTACHMENT RELATED TO PART II, INQUIRY 5
FINANCIAL STATEMENT
NET WORTH
Fortunato P. Benavides (includes spouse and dependent children)
463-84-2221
ASSETS
Cash on hand and in banks $ 66,91 1.66
US Government securities-add schedule 0.00
Listed securities-add schedule 0.00
Unlisted securities-add schedule
Accounts and notes receivable: 0.00
Due from relatives and friends
Due from others
Doubtful
Real estate owned-add schedule-see Schedule A 322,701.08
Real estate mortgages receivable 0.00
Autos and other personal property 54,000.00
Cash value-life insurance 15,107.00
Other assets-itemize:
Spouse beneficiary of trusts; trustee is
Rrst Union National Bank of Rorida* 1,840,121.82
Horses 11.000.00
Total Assets $2,309,841.56
CONTINGENT LlABIUTIES
As endorser, comaker or guarantor 0.00
On leases or contracts 773.00
Legal Claims 0.00
Provision for Federal Income Tax 12,300.00
Other special debt 0.00
UABIUTIES
Notes payable to banks-secured 0.00
Notes payable to banks-unsecured 0.00
Notes payable to relatives 0.00
78
Notes payable to others 0.00
Accounts and bills due 6,690.08
Unpaid income tax 0.00
Other unpaid tax and interest 0.00
Real estate mortgages payable-add schedule-see Schedule C 177,710.97
Chattel mortgages and other liens payable 6,600.00
Other debts-itemize: 0.00
Total liabilities $ 204,074.05
Net Worth $2,105,767.51
Total Labilities and net worth $2,309,841.56
General Information
Are any assets pledged? (Add schedule.) No
Are you defendant in any suits or legal actions? No
Have you ever taken bankruptcy? No
* Value of five separate trusts based on market value of each trust x (times) spouse's
percentage of net income interest in each trust; value of separate annuity trust based
on present value of monthly annuity during spouse's lifetime.
79
SCHEDULE A
Real Estate Interests owned by self, spouse, and Immediate members of family:
1. 1/7 owner interest in 0.62 acres, Hidalgo, TX $ 571.08
2. 1/3 owner Interest in 2 lots and improvement.
Crow Wing County, MN 30,000.00
3. .000831 royalty interest in land in Hidalgo County, TX 50.00
4. 0091 non-part/royatty interest on 50 acres
in Starr County, TX 80.00
5. 1/3 owner 10 rural acres in Hidalgo County, TX,
John Sharp Subdivision 33,000.00
6. 1/8 owner interest of portion of Section 34,
Township 135, Range 29, Crow Wing County, MN 10,000.00
7. owner, homestead, lot and house, Austin, TX 249.000.00
Total Real Estate $322,701.08
SCHEDULE B
Specific identification of liabilities in excess of $1 ,000:
1. Real estate mortgage with Banc One Mortgage $177,710.97
2. Chattel mortgage: Valley Financial Service
of Phoenix, AZ, security is spouse's truck 6,600.00
3. MasterCard (2 accounts) 3.150.00
Total Uabilities $187,460.97
80
SCHEDULE C
One real estate mortgage secured by home in Austin, Texas
Payee:
Date of Note:
Original Amount:
Term:
Payments:
Balance:
Banc One Mortgage
November 1991
$180,000.CX)
30 years
Monthly principal and interest of $1,422.03
$177,710.97
81
RUBEH CASTILLO
CANDIDATE FOR THE
NORTHERN DISTRICT
OF ILLINOIS
UNITED STATES SENATE
QUESTIONNAIRE FOR JUDICIAL NOMINEES
BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (Include any former names used.)
ANSWER: Ruben Castillo
2. Address: List current place of residence and
office address (es).
ANSWER: Kirkland & Ellis
200 East Randolph Drive
Suite 5900
Chicago, Illinois 60601
Home Address:
6015 North Kilpatrick Avenue
Chicago, Illinois 60646
3. Date and place of birth.
ANSWER: August 12, 1954 — Chicago, Illinois
4. Marital Status (include maiden name of wife, or
husband's name). List spouse's occupation,
employer's name and business address(es).
ANSWER: Married to Sylvia Mojica Castillo on
August 12, 1978. She is employed as a social
worker/therapist by Tom Leo and Associates,
1530 West Wellington, Chicago, Illinois
60657.
5. Education: List each college and law school you
have attended, including dates of attendance,
degrees received, and dates degrees were granted.
ANSWER: Loyola University, Chicago, Illinois — 1972
to 1976 — B.A. Political Science (6/76)
Northwestern University School of Law,
Chicago, Illinois — 1976 to June, 1979 J.D.
(6/79)
6. Employment Record: List (by year) all business or
professional corporations, companies, firms, or
82
other enterprises, partnerships, institutions and
organizations, nonprofit or otherwise, including
firms, with which you were connected as an
officer, director, partner, proprietor, or
employee since graduation from college.
ANSWER: 1974-1979 — Deputy Clerk, Circuit Court of
Cook County, assigned to Night Arraignment
Court
1979-1984 — Associate Attorney, Jenner &
Block
1984-1988 — Assistant United States
Attorney, Northern District of Illinois
1988-1991 — Regional Counsel, Mexican
American Legal Defense and Educational Fund
("MALDEF")
1991- to present — Partner, Kirkland & Ellis
1988 to present — Adjunct Professor of Trial
Advocacy, Northwestern University School of
Law
7. Military Service: Have you had any military
service? If so, give particulars, including the
dates, branch of service, rank or rate, serial
number and type of discharge received.
ANSWER: None.
8. Honors and Awards; List any scholarships,
fellowships, honorary degrees, and honorary
society memberships that you believe would be of
interest to the Committee.
ANSWER; Recipient of Meritorious Service Award by the
Illinois State Bar Association for pro bono
work on behalf of indigent criminal
defendants, June, 1983; Recipient of FBI
Commendations for outstanding work as a
Federal Prosecutor (March and November,
1986) ; Recipient of Award from the United
States Customs Service for aggressive and
diligent prosecution of a currency and heroin
smuggling operation (1987); Recipient of
Certificate of Appreciation from Drug
Enforcement Administration for outstanding
- 2 -
83
contributions in the field of drug law
enforcement (1988) ; Recipient of United
States Secret Service Certificate of
Appreciation for superior contributions to
service's law enforcement responsibilities
(1988); Recipient of the Maurice Weigle Award
awarded by the Chicago Bar Foundation in
recognition of outstanding service to the
Legal Profession and Organized Bar during
1989; Selected one of ten outstanding young
citizens by Chicago Jaycee Organization,
1989; Selected in 1990 for "40 Under 40"
Honor by Crain's Chicago Business Magazine;
Selected Attorney of the Year in 1990 by
Mexican American Lawyers Association; Awarded
Community Service Award by Latin American
Police Association, 1989; Recipient of
Distinguished Alumni Citation from Loyola
University in October, 1992; Public Service
Award by Federal Bar Association, October,
1993.
9. Bar Associations; List all bar associations,
legal or judicial-related committees or
conferences of which you are or have been a member
and give the titles and dates of any offices which
you have held in such groups.
ANSWER: Vice President, Chicago Council of Lawyers,
1991-1993
Member of Board of Governors, Chicago Council
of Lawyers, 1988-1991
Member, Latin American Bar Association,
1980 to present
Member, American Bar Association, 1979 to
present
Board Member, Chicago Bar Foundation, 1991 to
present
Member, Civil Justice Reform Act Advisory
Group of the United States District Court for
the Northern District of Illinois (1991 to
1993)
- 3 -
84
Member of Advisory Board of Children and
Family Justice Center Northwestern University
Legal Clinic (1992 to the present)
Appointed by the Illinois Supreme Court to
the Special Commission on Administration of
Justice (Member of the Judicial Selection
Task Force) (1991 to 1993).
10. Other Memberships: List all organizations to
which you belong that are active in lobbying before public
bodies. Please list all other organizations to which you belong.
ANSWER: Former member of Board of Directors of the
Business and Professional People for the
Public Interest (BPI) ; Former Board Member,
Chicago Legal Clinic; Current Board Member,
Alumni Association of Northwestern University
School of Law; Appointed in 1990 to the
Visiting Committee of Northwestern University
School of Law.
11. Court Admission: List all courts in which you
have been admitted to practice, with dates of
admission and lapses if any such memberships
lapsed. Please explain the reason for any lapse
of membership. Give the same information for
administrative bodies which require special
admission to practice.
ANSWER: Illinois Supreme Court — 1979
United States District Court, Northern
District of Illinois — 1979
United States Court of Appeals for the
Seventh Circuit — 1984
12. Published Writings: List the titles, publishers,
and dates of books, articles, reports, or other
published material you have written or edited.
Please supply one copy of all published material
not readily available to the Committee. Also,
please supply a copy of all speeches by you on
issues involving constitutional law or legal
policy. If there were press reports about the
speech, and they are readily available to you,
please supply them.
- 4 -
85
ANSWER: Note, "Fifth Amendment - Confession and the
Right to Counsel," 68 Journal of Criminal Law
and Criminology 517 (1977) Comment, "The Use
of Civil Liability To Aid Crime Victims, "70
Journal of Criminal Law and Criminology 57
(1979) . Copies of these articles are
attached at Tab 1.
13. Health: What is the present state of your
health? List the date of your last physical
examination.
ANSWER: Good. September 20, 1993
14. Judicial Office; State (chronologically) any
judicial offices you have held, whether such
position was elected or appointed, and a
description of the jurisdiction of each such
court.
ANSWER: Appointed as Court Special Master in Northern
District of Illinois, 1990 to 1991, and as
Court Monitor, 1992 to 1993 by United States
District Court Judge James B. Zagel (Northern
District of Illinois) in Burgos, et al. v.
Ryder, et al. . No. 75 C 3974. My work
involved monitoring and reporting on the
ongoing efforts of the Illinois Department of
Children and Family Services to comply with a
1977 court decree which requires the
department to provide bilingual child welfare
services to clients whose primary language is
Spanish.
15. Citations; If you are or have been a judge,
provide; (1) citations for the ten most
significant opinions you have written; (2) a short
summary of and citations for all appellate
opinions where your decisions were reversed or
where your judgment was affirmed with significant
criticism of your substantive or procedural
rulings; and (3) citations for significant
opinions on federal or state constitutional
issues, together with the citation to appellate
court rulings on such opinions. If any of the
opinions listed were not officially reported,
please provide copies of the opinions.
ANSWER: I have not written any judicial opinions.
- 5 -
86
16. Public Office; State (chronologically) any public
offices you have held, other than judicial
offices, including the terms of service and
whether such positions were elected or appointed.
State (chronologically) any unsuccessful
candidacies for elective public office.
ANSWER: Appointed by Mayor Daley in May of 1989 to
serve on a three member blue ribbon panel
which recommended revisions to the City's
Minority and Female Purchasing Set-Aside
Program .
Appointed by Mayor Daley in April of 1992 to
serve on a nine member City of Chicago Gaming
Commission which reviewed the desirability
and feasibility of developing a single-site
casino, hotel, and family entertainment
complex in or near Downtown Chicago. (Chair
of the Legal/Regulatory Committee) .
17. Legal Career;
a. Describe chronologically your law practice
and experience after graduation from law
school including;
(1) whether you served as clerk to a judge,
and if so, the name of the judge, the
court, and the dates of the period you
were a clerk;
(2) whether you practiced alone, and if so,
the addresses and dates;
(3) the dates, names and addresses of law
firms or offices, companies or
governmental agencies with which you
have been connected, and the nature of
your connection with each;
b. (1) What has been the general character of
your law practice, dividing it into
periods with dates if its character has
changed over the years?
(2) Describe your typical former clients,
and mention the areas, if any, in which
you have specialized.
- 6 -
87
c. (1) Did you appear in court frequently,
occasionally, or not at all? If the
frequency of your appearances in court
varied, describe each such variance,
giving dates.
(2) What percentage of these appearances was
in:
(a) federal courts; J
(b) state courts of record;
(c) other courts.
(3) What percentage of your litigation was:
(a) civil;
(b) criminal.
(4) State the number of cases in courts of
record you tried to verdict or judgment
(rather than settled) , indicating
whether you were sole counsel, chief
counsel, or associate counsel.
(5) What percentage of these trials was:
(a) jury;
(b) non-jury.
ANSWER: I did not serve as a traditional federal
law clerk. In order to finance my college
and law school education I served as a state
clerk to a Cook County local arraignment
court which held sessions at night.
From June, 1979 to April, 1984, I worked
as an associate attorney with the law firm of
Jenner & Block located at One IBM Plaza in
Chicago, Illinois 60611. During this time
period my legal practice consisted primarily
of general civil and criminal litigation. My
typical clients included both individuals and
corporations. I also participated in various
civil rights and criminal law litigation
matters on a pro bono basis. During my
litigation practice at Jenner I split my
appearances evenly between federal and state
court, and spent 80% of my time on civil
litigation and the remaining 20% on criminal
litigation.
- 7 -
88
In April of 1984 I accepted an
appointment as an Assistant United States
Attorney in the Northern District of
Illinois. I worked at the United State's
Attorney's Office located at 219 South
Dearborn Street, Suite 1200, Chicago,
Illinois 60602. > rom April of 1984 through
April of 1988 my : ractice consisted
exclusively of tht investigation, preparation
and trial of federal criminal prosecutions.
My only client during this time period was
the United States During this time period I
served as lead pr secutor in over twenty-five
trials, which inc uded more than twenty jury
trials.
In April of 988 I became the Director
and Regional Coun. el of the Chicago Office of
the Mexican American Legal Defense and
Educational Fund ("MALDEF"), which was
located at 542 South Dearborn Street,
Suite 750, Chicago, Illinois 60605. From
April of 1988 to April of 1991 I supervised
and participated in various federal class
action litigation on behalf of Hispanic
clients. During this time period I solely
practiced civil litigation and primarily
handled employment discrimination, voting
rights, education and immigration cases.
Ninety percent of my court appearances were
in federal court.
In May of 1991 I became a partner at my
present law firm of Kirkland & Ellis in
Chicago. I presently work at Kirkland 's
office at 200 East Randolph Drive, Chicago,
Illinois 60601. My practice consists of both
civil (40%) and criminal defense litigation
(60%). My typical clients are large Chicago
based corporations. I have also continued to
represent individual clients on both a pro
bono and paid basis. Ninety percent of my
court appearances are in federal court.
I have tried over thirty cases to
verdict or judgment as both chief and sole
counsel. Ninety percent of these cases were
jury trial cases.
89
I have never practiced alone during my
legal career.
18. Litigation; Describe the ten most significant
litigated matters which you personally handled.
Give the citations, if the cases were reported,
and the docket number and date if unreported.
Give a capsule summary of the substance of each
case. Identify the party or parties whom you
represented; describe in detail the nature of your
participation in the litigation and the final
disposition of the case. Also state as to each
case:
a. the date of representation;
b. the name of the court and the name of the
judge or judges before whom the case was
litigated; and
c. the individual name, addresses, and telephone
numbers of co-counsel and of principal
counsel for each of the other parties.
AKSWER: 1. Shy, et al. v. Navistar. Case No.
C-3-92-333 (Judge Rice, W.D. Ohio,
1992) . This EKISA class action case
involved numerous novel litigation
issues as well as complicated tax and
federal securities issues, and proceeded
on a parallel basis in two separate
federal districts. I was one of the
main attorneys for Navistar throughout
this litigation. My primary co-counsel
were Emily Nicklin and Michael Kerr,
Kirkland & Ellis, 200 East Randolph
Drive, Chicago, Illinois (312) 861-2000.
My opponents were represented by Daniel
Sherrick, Associate General Counsel
International Union, United Automobile,
Aerospace and Agricultural Implement
Workers of America, 8000 East Jefferson,
Detroit, Michigan 48214, Tel. No. (313)
926-5216, and Julia Penny Clark,
Bredhoff & Kaiser, 1000 Connecticut
Ave., N.W., Suite 1300, Washington, D.C.
20036, Tel. No. (202) 833-9340. This
case was settled in 1993 and the class
settlement was approved by Judge Rice in
July of 1993.
- 9
90
Hastert v. Board of Elections. 777 F.
Supp. 634 (Judges Conlon, Norgle and
Kanne, N.D. 111. 1991). This Illinois
congressional redistricting case led to
the creation of Chicago's first Hispanic
congressional district. I was the
senior litigation attorney for Hispanic
interests in this case. My co-counsel
on this case were Arturo Jauregui,
Mexican American Legal Defense and
Educational Fund, 542 South Dearborn
Street, Chicago, Illinois 60605 (312)
427-9363, and Judson H. Miner, Davis,
Miner, Barnhill, 14 West Erie Street,
Chicago, Illinois 60610, Tel. No. (312)
751-1170. The Republican interests in
this case were represented by Ty Fahner
of Mayer, Brown & Piatt, 190 South
La Salle Street, Chicago, Illinois
60603, Tel. No. (312) 782-0600, and the
Democratic interests were represented by
William J. Harte, 111 West Washington
Street, Suit€ 1100, Chicago, Illinois
60602, Tel. No. (312) 726-5015
Ortiz V. Fainnan. et al.. 88-7509 (N.D.
111. Judge Duff). I was appointed as
lead trial counsel to represent a
prisoner in a complex prisoner rights
case. This trial ended in one of the
largest individual jury awards to
plaintiff — $758,000. On December 29,
1993 Judge Duff granted the defendants'
motion for a new trial. Thereafter, the
case was tentatively settled pursuant to
a confidential settlement agreement.
The defendants were represented by
Assistant Attorney General Roger P.
Flahaven, 100 West Randolph Street, 13th
Floor, Chicago, Illinois 60601, Tel. No.
(312) 814-3650 and Assistant Attorney
General Patricia A. Marshall, 100 West
Randolph Street, 13th Floor, Chicago,
Illinois 60601, Tel. No. (312) 814-5195.
Hernandez v. Woodward. 714 F. Supp. 1963
(Judge Duff, N.D. 111. 1989). This
federal voting rights class action
successfully challenged restrictive
deputy voter registrar practices which
- 10 -
91
adversely affected the voter
registration of Hispanic voters. I
served as chief counsel for plaintiffs
in this case which was successfully
settled after the entry of an agreed
temporary restraining order. My co-
counsel on this case was Arturo
Jauregui, Mexican American Legal Defense
and Educational Fund, 542 South Dearborn
Street, Chicago, Illinois 60605 (312)
427-9363. The defendants were
represented by Stuart D. Gordon, 30
North La Salle Street, Suite 2040,
Chicago, Illinois 60602, Tel. Nos. (309)
759-0800; (312) 541-0707.
5. Ridge v. Verity, et al. . 715 F. Supp,
1308 (Judge Standish, W.D. Pa.). I
argued on behalf of Hispanic interests
in this complex multi-party action which
challenged the inclusion of undocumented
persons in the 1990 census. The parties
are listed in the published opinion.
(See Attachment 2) The defendants were
represented by Sandra M. Schraibman,
Thomas Peebles and Susan Korytkowski ,
Attorneys, U.S. Department of Justice,
Civil Division, Room 3744, 10th &
Pennsylvania Avenue, Washington, D.C.
20530, Tel. No. (202) 514-2000.
6. U.S. V. Bentlev. Deoan. Josten & Yuna.
No. 85 CR 267. After this month long
jury trial before Judge PlunJcett (N.D.
111.) convictions were returned against
all defendants in this commodities case,
including the first successful
prosecutions of lower level salesmen. I
served as one of the chief prosecutors
in this case. My co-counsel on this
case was former federal prosecutor James
R. Ferguson who is presently with the
law firm of Sonnenschein, Nath &
Rosenthal, 800 Sears Tower, Chicago,
Illinois 60606 (312) 876-3188. I
received a commendation from the FBI for
my work on this case. The defendants
were represented by David P. Schippers,
Schippers & Gilbert, 79 West Monroe
Street, Suite 400, Chicago,. Illinois
- 11 -
92
60603, Tel. No. (312) 263-1200 and
Martin S. Agran, Agran & Agran Ltd., 105
West Madison Street, Suite 700, Chicago,
Illinois 60602, Tel. No. (312) 236-2434.
United States v. Centracchio & Saleni.
Nos. 84 CR 2678, 84 CR 2773 (N.D. 111.).
This was a three week bank fraud
prosecution involving the Broadway
National Bank which I successfully tried
along with now Judge Suzanne Conlbn
(Northern District of Illinois, Tel. No.
(312) 435-5595). This jury trial was
tried before Judge Shadur. The
defendants were represented by Frank
Oliver, current address and telephone
number is unknown, and Gerald M.
Werksman, 343 South Dearborn Street,
Suite 1510, Chicago, Illinois 60604,
Tel. No. (312) 372-5196.
United States v. Cosentino & Patterson.
86 CR 359 (N.D. 111., Judge Marvin
Aspen) . This was an insurance fraud
trial in which I served as one of the
lead prosecutors. My co-counsel was
former Assistant United States Attorney
Dan DuPree who is presently employed as
an attorney at the Brunswick
Corporation, One North Field Court, Lake
Forest, Illinois 60045-4811, Tel. No.
(708) 735-4700. The appeal is reported
at 869 F.2d 301 (7th Cir. 1989). I
received a commendation from the FBI for
my work on this case. The defendants
were represented by Jerome Rotenberg,
Rosenfeld, Rotenberg, Hafron & Shapiro,
Chicago, Illinois, Tel. No. (312) 372-
6058.
United States v. Dr. Bernard Lerner.
87 CR 268 (N.D. 111., Judge Marvin
Aspen) . This was a two week jury trial
in which I served as one of the lead
prosecutors which successfully
prosecuted the fraudulent prescription
activities by a doctor who was on the
staff of Northwestern Memorial Hospital.
My co-counsel was Phillip A. Turner, a
former federal prosecutor, -who is
- 12 -
93
currently a partner at Turner, Latz «
OlBStead, 200 West Madison Street,
Suite 440, Chicago, Illinois 60606, Tel.
No. (312) 899-0900. The defendant was
represented by Julius Lucius Echeles,
300 North State Street, Suite 4428,
Chicago, Illinois 60610, Tel. No. (312)
782-0711.
10- United States v. OriamDo. et a1 , ^ No. 88
CR 319 (N.D. 111., Judge Harry
Leinenweber) . This was a one week
narcotics jury trial which I
successfully tried by myself in 1988.
The defendants were represented by
Dennis Cooley, 155 North Michigan
Avenue, Suite 716, Chicago, Illinois
60601, Tel. No. (312) 565-1966, and
Stuart V. Goldberg, 180 North La Salle
Street, Suite 1925, Chicago,
Illinois 60601, Tel. No. (312)
327-9400.
^5- Legal Activities: Describe the most significant
legal activities you have pursued, including
significant litigation which did not progress to
trial or legal matters that did not involve
litigation. Describe the nature of your
participation in this question, please omit any
information protected by the attorney-client
privilege (unless the privilege has been waived) .
ANSWER: Throughout my career I have devoted myself to
improving my skills as a trial attorney. I
have taught Trial Practice at Northwestern
University School of Law as an adjunct
professor for the last five years (1989-1994)
and I have also served as an instructor at
the National Institute of Trial Advocacy
("NITA") during the same time period.
During the last two years I have devoted
considerable time and effort to improving the
local court systems by serving as the Vice
President of the Chicago Council of La%iryers
and by my service on the Civil Justice Reform
Act Advisory Group for the Northern District
of Illinois, the Illinois Supreme Court's
Special Commission on Administration of
Justice, and the Advisory Board of the
- 13 -
94
Children and Family Justice Center of the
Northwestern University Legal Clinic.
I have also attempted to maintain an active
community involvement throughout my career as
indicated by my service on several boards of
legal services organizations as well as my
service on several civic commissions.
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1. List sources, amounts and dates of all anticipated
receipts from deferred income arrangements, stock,
options, uncompleted contracts and other future
benefits which you expect to derive from previous
business relationships, professional services,
firm memberships, former employers, clients, or
customers . Please describe the arrangements you
have made to be compensated in the future for any
financial or business interest.
ANSWER: None.
2. Explain how you will resolve any potential
conflict of interest, including the procedure you
will follow in determining these areas of concern.
Identify the categories of litigation and
financial arrangements that are likely to present
potential conf licts-of-interest during your
initial service in the position to which you have
been nominated.
ANSWER: I plan to strictly follow the Code of Conduct
for United States Judges. The only potential
conflicts of interests that I can perceive
are related to personal friendships rather
than financial arrangements. I will
automatically excuse myself from hearing any
matters in which the parties are represented
by my personal friends. In addition, because
of my close prior association with NALDEF I
do not believe it would be appropriate for me
to preside over any litigation filed by
MALDEF in the Northern District of Illinois.
3. Do you have any plans, commitments, or agreements
to pursue outside employment, with or without
compensation, during your service with the court?
If so, explain.
- 14
95
ANSWER: With the permission of the Chief Judge of the
Northern District of Illinois and in
compliance with the Code of Conduct for
United States Judges, I plan to continue my
service as an Adjunct Professor of Trial
Advocacy at Northwestern University School of
Law. My compensation agreement with
Northwestern is $2,000 per year as indicated
m the attached Financial Disclosure Report.
(Tab 3) .
4. List sources and amounts of all income received
during the calendar year preceding your nomination
and for the current calendar year, including all
salaries, fees, dividends, interest, gifts, rents,
royalties, patents, honoraria, and other items
exceeding $500 or more (If you prefer to do so,
copies of the financial disclosure report,
required by the Ethics in Government Act of 1978
may be substituted here.) '
ANSWER: See attached Financial Disclosure Reoort
(Tab 3) . ^ '
5. Please complete the attached financial net worth
statement in detail (Add schedules as called for) .
ANSWER: See Attached Schedule, (Tab 4).
6. Have you ever held a position or played a role in
a political campaign? If so, please identify the
particulars of the campaign, including the
candidate, dates of the campaign, your title and
responsibilities .
ANSWER: I have not played an active role in any
political campaign. I have served on
Political Lawyers Committees for U.S. Senator
Carol Mosley-Braun; State Senator Jesus
Garcia and State Senator Miguel del Valle.
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the
American Bar Association's Code of Professional
Responsibility calls for "every lawyer, regardless
of professional prominence or professional
workload, to find some time to participate in
serving the disadvantaged." Describe what you
have done to fulfill these responsibilities.
- 15 -
96
listing specific instances and the amount of time
devoted to each.
ANSWER: Throughout my legal career I have worked on
significant pro bono litigation and worked on
various efforts at improving the legal system
for the disadvantaged. At Jenner & Block I
worked on several federal civil rights cases
as well as a pro bono murder case. At
Kirkland & Ellis I worked on a prisoner
rights trial and a congressional
redistricting trial on a pro bono basis.
During my tenure at the Mexican American
Legal Defense and Educational Fund and
throughout my service on various boards and
commissions, such as the Chicago Legal Clinic
and the Chicago Bar Foundation, I have sought
to ensure that the legal system became more
accessible to the disadvantaged.
I estimate that I have spent well in excess
of 300 hours per year on pro bono matters.
2. The American Bar Association's Commentary to its
Code of Judicial Conduct states that it is
inappropriate for a judge to hold membership in
any organization that invidiously discriminates on
the basis of race, sex, or religion. Do you
currently belong, or have you belonged, to any
organization which discriminates — through either
formal membership requirements or the practical
implementation of membership policies? If so,
list, with dates of membership. What you have
done to try to change these policies?
ANSWER: I am not and have never been a member of any
organization of this type.
3. Is there a selection commission in your
jurisdiction to recommend candidates for
nomination to the federal courts? If so, did it
recommend your nomination? Please describe your
experience in the entire judicial selection
process, from beginning to end (including the
circumstances which led to your nomination and
interviews in which you participated) .
ANSWER: Beginning March of 1993 I submitted a formal
application with a 26 member Merit Selection
16 -
97
Commission which was named by Senators Sinon
and Carol Mosley Braun. The application form
was similar to this form. Thereafter, I was
one of forty-six candidates (out of 130
applicants) that was formally interviewed by
the full Commission. In July of 1993 my name
was among the names of ten finalists that
were submitted to the Senators by the
Commission. After all ten finalists were
interviewed by the Senators I was informed
that the Senators had recommended my
nomination, along with two other names, for
the three vacancies which currently exist in
the Northern District of Illinois.
Thereafter, I was subjected to further
evaluations by the local bar associations in
Chicago. I was found qualified to serve as a
federal judge by the Chicago Council of
Lawyers and the Chicago Bar Association. I
was found highly qualified by the Illinois
State Bar Association. During the last five
months I have been the subject of further
evaluations by the Department of Justice, the
Federal Bureau of Investigation and the
American Bar Association. I was formally
interviewed on one occasion during each of
these investigations. After the completion
of these three investigations I was formally
nominated by the President for consideration
by the Senate.
Has anyone involved in the process of selecting
you as a judicial nominee discussed with you any
specific case, legal issue or question in a manner
that could reasonably be interpreted as asking how
you would rule on such case, issue, or question?
If so, please explain fully.
ANSWER: No.
Please discuss your views on the following
criticism involving "judicial activism."
The role of the Federal judiciary within the
Federal government, and within society generally,
has become the subject of increasing controversy
in recent years. It has become the target of both
popular and academic criticism that alleges that
the judicial branch has usurped many of the
prerogatives of other branches and levels of
17 -
98
government. Some of the characteristics of this
"judicial activism" have been said to include:
a. A tendency by the judiciary toward problem-
solution rather than grievance-resolution;
b. A tendency by the judiciary to employ the
individual plaintiff as a vehicle for the
imposition of far-reaching orders extending
to broad classes of individuals;
c. A tendency by the judiciary to impose broad,
affirmative duties upon governments and
society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing
and ripeness; and
e. A tendency by the judiciary to impose itself
upon other institutions in the manner of an
administrator with continuing oversight
responsibilities .
ANSWER: Our country was designed to have a three
branch form of government. The role of the
judiciary should be to apply (not create) the
law to the facts presented by a specific case
or controversy. It is a fundamental mistake
for the judiciary to attempt to promulgate
new laws or duties because such activities
would usurp the role of the legislative
branch of government. By the same token,
most legal oversight responsibilities are
properly the role of the executive branch of
government and should not be the
responsibility of the judiciary. The
jurisdictional requirements are vital and
important to the proper functioning of the
federal judiciary and help to ensure that the
proper cases and controversies are decided by
the judicial branch of government.
- 18 -
99
FINANCIAL DISCLOSURE REPORT KHRKsHjOrrnT""--
(9 u.a.c.A. *pp. t, itioi-iui
1. r«r»OD R*portlDg (Last oab«, tlrat, aiddl* loltla.i
Castillo, Ruben
2. Court or Orgaolsatloa
United States District Court
Northern District of Illinois
]. Data of aaport
2/1/9A
4. Tltl* (Artlcla XII 3udg«* Indlcat* activa or
aanlor atatua; Haglatxata iudaaa lodlcata
full- or fxl-tiMi)
Active Status
S. Haport Typa {chacic appropriate typa)
X aoKlaatloo. Data 1/2//-A
Initial Anooal Final
6. ftapoxllDg Parlod
1/1/93-2/1/94
7. Cbaabaxa or Of flea Mdraaa
200 East Randolph Drive
Suite 5900
Chicago, Illinois 60601
e. on tlia baala of tjia loforsatlon cootaload Id thla Kaport, It
la, la vy oplnloD, Id co^llanca wlUi applleabla lawa and
x«gulatloaa
KavlavlDg offlcar slonatura
IMPORTANT NOTES: The iAstrucaons accompanying this form must be followed. Complete ali parts,
cfaeddng the NONE box for each section where you have no reportable iDformatlon. lign on last page.
I. POSITIONS. (Reporting indmdual on]y, sec pp. 7-8 of Isstniaioos.)
POSITION NA.MB OF ORGANIZATION.^NTITY
n
NONE (No raportal)la poaltlooa]
Partner
Board Member
Board Member
Kirkland I. Ellis (5/91 to Present)
Business and Professional People for Public Interest
(1591-7/53)
Chicago Legal Clinic (1991-7/93)
II. AGREEMENTS. (Reponmg individual only; sec p 8-9 of Instrunions.)
DATE PARTIES AND TERMS
NONE (Ho raportabla agraaaaata)
III. NON-INVESTMENT INCOME, (f.eponing individual and spouse; see pp. 9-12 of Instructions.)
SOURCE AND TYPE
D
(Honoraria only)
NONE (lo raportabla aoD-lDvaataact loc -aa)
R. Castillo
1
R. Castillo
R. Castillo
(S)
Kirkland
& Ellis
(1992)
- Law
Firm
Partner
Kirkland
& Ellis
(1993)
- Law
Firm
Partner
Northwestern University
School
of
Law (1994)
Afljunct
Tom Leo
rro: essor
& Associates (1992) Social
Therapist
(S)
Tom Leo i Associates (1993) Social Therapist
GROSS INCOME
(yours, not spouse'*)
S 190.000
$ 215.000
$ 2,000
$
$
100
FINANCIAL DISCLOSURE REPORT (cont'd)
■ ■■• of PftTBoa Itoportloo
Ruben Castillo
o«t« of
2/1/94
IV. REIMBURSEMENTS and GIFTS - transportat on, lodging, food, entertainment.
(Includes those to spouse and dependent children; use the pt rcnthctlcals '(S)' and '(DC)' to Indicate reportabk
rclmburKDients and gifts received by spouse ana dependec children, respectively. See pp.13-15 of Insimctlaoa.)
SOURCE DESCRimN
^ I NONE (lo aucb rvportabl* rvlaburs^oti or gifts)
E
V. OTHER GIPTS. (includes those lo spouse and dependent children; use the parenthetlcals *(S)' and '(DC)* to
Indicate other gifts received by spouse and oepcndent children, respectively. Sec pp.1^16 of Instmfittooa.)
□
SOURCE
NONE (lo sueb taporubl* gltto
DESCRIPTION
VAUJP
Vi. LIABILITIES.
(Includes those of spouse and dependeot chii .^n; Indicate where applicable, person rcspooflMc
.,: — .u.. .L..*: — I '/c^' r„_ ... !;„■, .,, «r r-^.,^.. -/T.- for joint UabLlity of —•«-*<"-
18 oilnstructioos.)
for liabUit> by usinj the parenthetical "(S)' for separate lial »\ of spouse, '(J)" for joint liability of reporting
Individual aoo spouse, and '(DC)' for liability of a dcpcndeni child. See pp.lfr-'" ' '
□
CREDITOR
NONE do raporublo llabllStloa)
DE-S^RIPTION
VALUE CODE*
J • tSS.OOO or laai
■ - J2SD,001 vo SSOO.OOO
a • lis, 001 ts tso.oDO
O - 1500.001 to si. 000, 000
1 to 1100,000
Jiu tl, 000, 000
M • 1100,001 ts UM.OOO
101
FINANCIAL DISCLOSURE REPORT (cont'd)
■tta* of P«r*oo teporting
Ruben Castillo
D«t« of
2/1/9A
VII. INVESTMENTS and TRUSTS - income, value, transactions. (lociudu those or
and dcpeodcDt children; icc pp. lft-27 of Instructions.)
DMcrisUsa of Aw*ta
(Iscla2Ia« cnac mmu)
X»dlo«t«, vb«r« AppUc»bl«, einwr of
t&« ••••i by ualA^ i£* p&r«BtJi«uc«l
■ iTlft LtB pHoC SGclSuT*.
at «ad or
Tr«B««ctloBa during r«partJj>g parlod
(1)
(3)
'ST:
(!)
I( sot aoapt tzcm 4tielooi>z« |
Hon til'
Va lotto
IOM(|lr ot
NONE lao r«port«tl»
Iwpr— , «•••(•. or
1
1st Nationwide Bank - IRA
A
Int.
J
T
None
2
Illinois College Bonds
A
Int.
J
T
None
3
1st Nationwide Bank - IRA(s)
A
Int.
J
T
None
« Putnam U.S. Govt. Income -
IRA Rollover Plan(s)
A
Int.
J
T
Buy
1/1/9
3 J
A
Putnam Investme
5
*
7
•
•
SO
11
12
13
14
IS
It
11
> H**^'?^; Co<l»«i »-S1.001) or loot l-Sl.OOl to 12,500 C-$2,501 to 5,000 O-»S,O01 to 915.000
• AT* 1 •, " * "' I-Sli-OOl to 550,000 r-S5D.O01 to 5100, OOD 0-5100,00) to 51.000,000 B-Horo than 51,000.000
2 ^.lu. coo... J.}ll,tM or I..; i!.!i5;661 to 554,655 U-h5,t51 to iVii.bti, iPJlM,841 il iSSilSdt —
(»•• Col. CI i 031 »-5250,OOl to 5500,000 0-5500,001 to 51.000.000 P-Mor« th.n 51,000.000
] v.lo. Mtiioa CoOm: 6.*ppr.l..l »-Co.t (r«tl .Itit. inly) 5>A»..>p.i.t* ' *-i«.b;il.rk«l
(••• Col. ai U-loot Valuo v-otter ■•Sstlutv)
102
I FINANCIAL DISCLOSURE REPORT (coDl'd)
Haas of PvraoD Kaportlog
Ruben Castillo
Dat« of
2/1/94
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (todict. p.rt of Report.)
1. With respect to Part I, I have served since 1991 as a Board of Director of the
Chicago Bar Foundation, a charitable arm of our local Bar Association.
2. mth respect to item 5 in Part 111, I began teaching a trial practice course
at Northwestern University School of Law in January of 199A as an Adjunct Professor.
My teaching responsibilities will be completed in June of 1994.
IX. CERTIFICATION.
In compliance with the provisions of 28 U.S.C. § 455 and of Advisory Opinion No. 57 of the Advisory Comminee on
Judicial Aaivities, and to the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudicaioiy
funnion in any litigation during the period covered by this repon in which I, my spouse, or my minor or dependent children
had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I cenify that all information given above (including information pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my knowledge and belief, and that any infonnaiioo not reported was
withheld because it met applicable statutory provisions permitting non-disclosure
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.C.A. app 7, § 501 et. seq., 5 U.S.C § 7353 and Judicial ConfercDoe
regulations.
Signature A^Z^-^ ( (f-^-Z^/fi^^ Due J>. ' /- ^y
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA. APP. 6, { 104, AND 18 MS.C fi 1001.)
FILING INSTRUCTIONS:
Man signed original and 3 additional copies to: Judicial Ethics Comminee
Administrative Office of the
United Suies Courts
Washington, DC 20544
103
ATTACHMENT FOUR
RNANOAL STATEMENT
NET WORTH
RUBEN CASTILLO
Provide I complete, current n/iinclal net worth suumeni which iterruui In deuJ
tU usru (Including \>kr± acc«unu, rul estate, securities, trusu, investmenu, u^d other fin^c-Ul
ho1di/igs) all liabUidei (Including debts, mortgiges, loins, ud other fininclil obligationt) of
yoiirvel/, your spouse, and other l/runediit* members of youx household.
ASSETS
UAiiLrnz4
Cuh en hu\i iiil ir buiij
V,
(X^
NoLu fM/»b;< IS b*nij-Mair«d
U.S. Covtmsfnt fcunia-tid
Holu f lytklc le itfia-tinitevU
Lined KOilitici-tdi Khidull
NoUi pt/tblj le r«:ui««
UrUJlttd »«ci»ii:ci--»i4 Kbtdjit
Noui piytbk i« eikui
Acxounli Lftd relet rtocivible;
AceounU ind billi du«
1^,
fd
Dvj« frvm r«!itirti &rd fricndj
Un; lid {nconv* lu
CS;« from olhe/l
OlSt/ iifiptid lu ind irUrtil
Doubtful
Ret] tiUK n,(r-4nu piytb.'c-aSd
»chtda]. -Pt-.^Scv.-n. (i-S.OrA^f
IW,
000
Kc*) C4U1C ownc4-t4d >ch«^U
:j^o.
6(X}
Ctiud owrimci and ot>i*r li«iu pty.
tbU
XtA) <iuK wor^tnti ttct'iMttU
Olhef d£b(j-i'.«(iuu--
Auloc ifid etfitr jKnaoC froperly
1^',
COL
Cuh viJje-L/« i/Mu;4rc«
'Z,
ODO
Oihtr »Aj;b-r.«nui«:
StTt^e (^ollc-sc ftovJi^
2.0
COO
. :
Te-(\ Acco^.-.r^
2^,
<23d
"
ToUJ UtklliiiM
IJQ
(YT,
~
Net Wottt
153,
~
Tout A.u<u
^^^,.
0(?0
Tou] L'tbiliiSu ml net ««rlk
V»
rvj^
^^
CO.vnNCENT UABnJTIES
None
GENERAL INFOJLMATION
■*
Aj toiottu, fcomiier or gviuuilor
Are 4ny uk'j plaSjed? (Add Khed-
uk.)
MO
Od Ituct or oontracli
Aft you defeodtnl ir. tr.y luiu or lc|t]
tfb'oiuT
(OO
Vtfi Otlmt
Hiv« yw CM uitB btftbvpiey?
MO
■*
Proviiion for FedenJ IrKomt T«
■•
Otfxr ipuU] debt
y
p^
===»=
;
6^jL^
^'^^-^^3
Persona] residence mortgage is held by Oak Trust
Savings Bank (Chicago, Illinois)
NOMINATIONS OF CARL E. STEWART, TO BE
U.S. CIRCUIT JUDGE; JAMES CARR, CLAR-
ENCE COOPER, FRANK M. HULL, MARY M.
LISI, AND W. LOUIS SANDS, TO BE U.S. DIS-
TRICT JUDGES
THURSDAY, APRIL 21, 1994
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 2:38 p.m., in room
SD-106, Dirksen Senate Office Building, Hon. Herbert Kohl presid-
ing.
Also present: Senators Metzenbaum and Thurmond.
OPENING STATEMENT OF SENATOR KOHL
Senator Kohl. This hearing will come to order. This afternoon,
the Judiciary Committee will conduct a hearing on the following ju-
dicial nominees: Judge Carl Stewart to be Circuit Court Judge for
the Fifth Circuit Court of Appeals; Judge James Carr to be District
Court Judge for the Northern District of Ohio; Judge Clarence Coo-
per to be District Court Judge for the Northern District of Georgia;
Judge Frank Hull to be District Court Judge for the Northern Dis-
trict of Georgia; Mary Lisi to be District Court Judge for the Dis-
trict of Rhode Island; and Judge Louis Sands to be District Court
Judge for the Middle District of Georgia.
As is customary, we will hear first from Senators and Represent-
atives who wish to introduce nominees to the committee, but before
we turn to them let me state for the record that each nominee has
completed a detailed questionnaire on his or her qualifications, ex-
perience, finances and philosophy. The portions of the question-
naire available to the public will be printed in the record of this
hearing.
I understand that we have received a letter concerning the nomi-
nation of Mary Lisi from Stephen Fortunato, so we will make that
part of the record.
[The letter referred to follows:]
(105)
106
The Law Firm of
FORTUNATO & TaRRO,
Warwick, RI, March 15, 1994.
Hon. Joseph Biden,
U.S. Senate,
Washington, DC.
Dear Senator Biden: On March 14, 1994, I received a call from Cathy Poston,
Esq., Chief Nominations Counsel, who indicated that I should direct a letter to you
in light of your poUcy of generally not having live testimony on nominations to the
Federal Bench.
I am opposed to the nomination of Mary Lisi to the United States District Court
for the District of Rhode Island because she has absolutely no experience as a trial
lawyer. Based upon my own frequent practice in the United States District Court
over the past twenty-three (23) years, as well as discussions about the matter with
professional colleagues, I believe I can safely state that Mary Lisi has not handled
any matters in the United States District Court. It also appears that she has never
been involved as counsel in a jury trial — or in any significant non-jury matters in
any court for that matter.
I believe she has had some experience as a court-appointed advocate for children
in Family Court matters, but this role bespeaks more of social work rather than a
trial attorneys position. As you are aware, proceedings involving juveniles are in no
way as formal and rigorous as matters that come before a federal trial court.
At the present time, Ms. Lisi is Chief Counsel for the Supreme Court, handling
disciphnary matters involving complaints against attorneys. Again, the forum is in
no way a formal one regarding procedures and matters of evidence.
In short, Mary Lisi has no meaningful trial experience whatsoever, and she has
not gained experience elsewhere to equip her for the federal trial coxirt. Frankly,
other than trial experience, I do not see how anyone can become qualified to sit as
a United States District Court judge. This, in my opinion, is somewhat different
from a nominee for an appellate position, where a distinguished career of teaching
and scholarship could qualify one for the United States Court of Appeals or even
the Supreme Court of the United States.
I understand from Ms. Poston that this letter will be circvdated to other members
of the Committee, and for this I am grateful.
It is my hope that members of the Committee will raise this question directly in
its inquiry of Ms. Lisi and in its deUberations. The people of Rhode Island who seek
relief in the Federal Cotirts — or who must defend themselves against claims in that
forum — deserve to have their matters adjudicated by someone who has significant
experience with the Federal Rules of Evidence and Procedure as well as at least
some of the important and complex statutes that are regularly disputed in the Fed-
eral Courts.
I thank you for your attention to this.
Very truly yours,
Stephen J. Fortunato, Jr.
P.S. I should add that when this position became available, it was the consensus
of the legal community and the public at large that it would be fitting for a woman
to be appointed because no woman has previously served on this Court in Rhode
Island. I can assure you that in Rhode Island there are a number of qualified
women, many of whom have distinguished records as federal litigators and some of
whom are presently sitting members of the Rhode Island judiciary.
Senator KOHL. We will keep the record open for a limited time
for any other submissions to the committee and in case members
of the committee would like to submit written questions. Of course,
we will place in the record the full introductory statements of home
State Senators.
We have a number of very distinguished Senators with us today,
and so we are going to begin with them. Before we do, though, let
me make one point. We have six nominees, but not too much time
this afternoon, and so we need to complete the hearing today in
order to go to markup next week. Therefore, to the extent that in-
troductions can be somewhat abbreviated, it would be appreciated
by everybody.
107
First, on behalf of Ms. Lisi, we have Senator Chafee and Senator
Claiborne Pell here today, and we will have that introduction first.
Senator Pell.
STATEMENT OF HON. CLAIBORNE PELL, A U.S. SENATOR
FROM THE STATE OF RHODE ISLAND
Senator Pell. Thank you very much, indeed. Senator Kohl.
Members of the committee, it is with very real pleasure that I am
here to introduce to you Mary Lisi of my State of Rhode Island for
the position of district court judge.
I am very pleased by this nomination and proud to be part of it.
I am confident that following your review of her qualifications, you
will agree that President Clinton made a wise, appropriate choice
for the vacancy on the Federal bench in my State.
I recommended Mary Lisi to President Clinton because I consid-
ered her a person of exemplary talent, sterling character, and very
real compassion, whose legal career has been distinguished by high
professional competence and by her most judicial temperament and
demeanor.
Mary Lisi is a native Rhode Islander. She received her under-
graduate degree from the University of Rhode Island, her law de-
gree from Temple. In her legal career, she has served in private
practice, as a public defender, and as a court-appointed special ad-
vocate for children and juveniles in our State's juvenile system.
In recommending Mary Lisi to President Clinton, I realized that
her distinguished, accomplished legal career was quite different in
character from those of many other nominees, but I believe strong-
ly that her experiences, though different from the traditional, were
equally as important and would bring to the bench a diversity of
background. In short, I believe strongly that Mary Lisi has the nec-
essary skills, knowledge, and temperament.
I would also note that this is an historic day for the Federal judi-
ciary in my State. If confirmed, Mary Lisi will become the first
woman to become a Federal judge in Rhode Island. It is hard to
believe it has taken over 200 years for us to come to this point, but
I am glad we finally have.
As we achieve greater diversity in the makeup in our Federal ju-
diciary, it is imperative that we not sacrifice the integrity and qual-
ity of our court system, and that is why I am so proud of this nomi-
nation, which will add a great deal to the Federal bench.
I thank you for this opportunity, Senator Kohl.
Senator Kohl. Thank you, Senator Pell.
Senator Chafee.
STATEMENT OF HON. JOHN CHAFEE, A U.S. SENATOR FROM
THE STATE OF RHODE ISLAND
Senator Chafee, Thank you very much, Mr. Chairman. First, I
am delighted to join with Senator Pell in welcoming Ms. Lisi to the
Hill and introducing her to this committee.
In our State, Mr. Chairman, we take great pride in the Rhode
Island members of the Federal judiciary. At the district court level,
we have Judges Laqueux and Torres and retired Judges Pettine
and Boyle. Judge Selya serves with distinction on the first circuit.
108
and each of these judges are truly outstanding individuals and
have served our Nation extremely well.
I am confident that Mary Lisi will bring added luster to this no-
table group, and I am very pleased to recommend her to you for
the position of U.S. district judge for Rhode Island. She has got an
impressive resume that details a career devoted to public service.
She spent the greater part of the 1980's working in the courts to
protect the rights and well-being of abused or neglected children in
our State.
Since 1988, she has worked to ensure the integrity of our court
system by serving on the Supreme Court Disciplinary Board. I also
would note that in the last 2 years, Mary Lisi gave of her time by
serving on a very important commission we had to investigate the
failure of some of our credit unions, and this was an extremely dif-
ficult job that took untold number of hours and she carried herself
off with great distinction.
So, in sum, Mr. Chairman, the committee has before it this nomi-
nee whose professional life has truly been dedicated to serving our
community and the interests of justice and fairness. So it is with
enthusiasm that I recommend her to you, Mr. Chairman.
Senator KOHL. Thank you very much, Senator Chafee and Sen-
ator Pell.
Ms. Lisi, we will come back to you in a few minutes.
We have three nominees from the State of Georgia. They are rep-
resented here today by Senator Nunn and Senator Coverdell, and
I don't know if Congressman Lewis here. We will take those nomi-
nees, Senator Nunn, as you wish for their introductions. We have
three nominees. How would you like to introduce them today?
STATEMENT OF HON. SAM NUNN, A U.S. SENATOR FROM THE
STATE OF GEORGIA
Senator Nunn. Thank you very much, Mr. Chairman. On behalf
of Senator Coverdell and myseLf — and he will add whatever re-
marks he would like to make, but I believe I am speaking on behalf
of both of us because we have discussed this — it is my honor and
pleasure to introduce to the committee today three of President
Clinton's nominees to the Federal district court seats in the State
of Georgia.
All of them are judges, outstanding judges: Judge Clarence Coo-
per, Judge Frank Hull, and Judge Louis Sands. They already have
made £in outstanding record on the bench and, of course, we are
very proud of the diversity they represent, but I can assure the
members of this committee that they were selected because they
are outstanding individuals, and I believe will make outstanding
Federal judges. I am just going to say a few words about each of
them.
Judge Cooper currently serves on the Georgia Court of Appeals.
He was appointed by Gov. Joe Frank Harris to that position in
1990. He was returned by the voters of Georgia to that position in
1992. Prior to joining the court of appeals, Judge Cooper was on
the Fulton County Superior Court and on the Atlanta Municipal
Court, so he has had very significant judicial experience. He also
served as assistant district attorney in Atlanta.
109
Judge Cooper has distinguished himself in his military service
and his education. From 1968 to 1970, Judge Cooper served in the
U.S. Army and received a Bronze Star for his tour of duty in Viet-
nam. He is a graduate of Clark College, the John F. Kennedy
School of Grovernment, and the Massachusetts Institute of Tech-
nology Community Fellows Program. After beginning his legal edu-
cation at Howard University School of Law in 1964, Judge Cooper
transferred to Emory University in Atlanta, and as an Emory grad-
uate myself, I am very proud to say, that he graduated from Emory
with a juris doctor degree in 1967.
Judge Frank Hull was appointed to the Atlanta Judicial Circuit
in 1990. Judge Hull was returned by the voters in 1992. Before
joining the superior court, Judge Hull served 6 years on the Fulton
County State Court. She has had an outstanding record in both of
those positions.
Judge Hull is a graduate of Randolph-Macon Women's College
and a cum laude graduate of Emory University Law School. In
1973, Judge Hull served a clerkship with Judge Elbert Tuttle, then
judge of the fifth circuit court of appeals. From 1974 to 1984, she
worked for the firm of Powell, Goldstein, Frazer & Murphy as a
trial attorney handling a broad range of cases in the Federal and
State courts.
Judge Hull is a longtime participant in a large number of legal
and civic concerns. She has been very active in the Atlanta project,
an effort by former President Carter to address in a comprehensive
manner the problems of crime, health, and education that are
found in the Atlanta area, and indeed in most of the cities of our
country. She has done a tremendous amount of work in counseling,
job placement, drug and alcohol rehabilitation, and other endeavors
so important in the whole judicial system.
Judge Louis Sands currently sits on the superior court of the
Macon judicial circuit, a position to which he was appointed by
Gov. Zell Miller in 1991. Between 1975 and 1987, Judge Sands was
an assistant district attorney for the Macon circuit and an assist-
ant U.S. attorney for the Middle District of Georgia. He was the
senior assistant U.S. attorney in the middle district for 8 years.
During his tenure in the U.S. attorney's office and the district at-
torney's office. Judge Sands developed a strong record in handling
complex criminal and civil cases. He has a background in child sup-
port enforcement and has served on several State task forces deal-
ing with family violence, gender equality, and substance abuse.
Judge Sands spends much of his spare time working with our
young people in Georgia. In fact, Mr. Chairman, these are all peo-
ple of diff'erent backgrounds, but they have a common denominator,
and that is their dedication to the young people and to the family
and their concern about family breakup in our State and in our Na-
tion.
Judge Sands is a graduate of Mercer University and the Mercer
University Walter F. George School of Law. He is an active mem-
ber of the Macon community, helping to lead the Adopt-a-Role
Model Program that matches local professionals with high-school-
age children in mentoring relationships. He is also very active in
the Stewart Chapel African Methodist Episcopal Church. When
Judge Sands is approved by this committee and the Senate, I be-
110
lieve he will be an asset to the Federal bench, just as he has been
at the State level.
All of these are outstanding individuals, Mr. Chairman and Sen-
ator Thurmond. I interviewed these people extensively and the oth-
ers who were contenders for these jobs. We had an unusual number
of well qualified applicants. These people were outstanding, and I
think they will do an excellent job for our State and Nation. I com-
mend them to you. Senator Thurmond, the committee, and to the
Senate.
Senator KoHL. We thank you, Senator Nunn,
Senator Coverdell.
STATEMENT OF HON. PAUL COVERDELL, A U.S. SENATOR
FROM THE STATE OF GEORGIA
Senator CovERDELL. Mr. Chairman, I want to echo the remarks
given by Senator Nunn, and also publicly thank him for the co-
operation extended to our office in the process by which he meas-
ured the applicants for these high posts.
All of these individuals are distinguished citizens of our State.
They have demonstrated academic proficiencies. They have dem-
onstrated a community spirit so necessary in the work for which
they will soon be challenged. They have professionally impeccable
records. The President has selected, along with Senator Nunn and
his office, three very distinguished Georgians very suitable to serve
their Nation and this President.
Senator KoHL. Thank you very much.
Senator Nunn. Mr. Chairman, I see that Congressman John
Lewis is here. I am very proud that he could join us today. I know
he knows these individuals very well.
Senator KoHL. Very good. Thank you. Senator Nunn and Senator
Coverdell.
Representative Lewis.
STATEMENT OF HON. JOHN LEWIS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF GEORGIA
Representative Lewis. Thank you very much, Mr. Chairman,
Senator Thurmond. I am very pleased to be here to join with Sen-
ator Nunn and Senator Coverdell in introducing Judges Hull, Coo-
per, and Sands to you.
This is indeed a very special occasion for the people in the State
of Georgia and for our Nation. The nomination of these three
judges to the Federal bench tends to demonstrate the distance we
have come as a nation and as a people. It reflects this administra-
tion's and your commitment to diversity on the Federal bench. It
also reflects this administration's and your commitment to the
highest quality Federal judiciary.
Judge Hull, Judge Cooper, and Judge Sands are all held in ex-
treme high regard for their excellent judicial temperament, fair-
ness, and hard work. All three are highly respected by their peers
in the State of Georgia.
There is a lot I could say about Judge Frank Mays Hull, about
how she graduated cum laude from Emory University Law School
and about how she was one of the first women appointed to the
Ill
Fulton County State Court, twice reelected to the court, and then
elevated to the Fulton County Superior Court in 1990.
But as Senator Nunn stated so well, what I most want to say is
that Judge Frank Hull was Elbert Tuttle's law clerk. Judge Tuttle
is 97 years old now. He served 38 years on the U.S. Court of Ap-
peals for the Fifth and Eleventh Circuits. We all know Judge
Tuttle. Judge Tuttle's fairness and firmness and his fair and firm
leadership as chief judge of the Federal appeals court of the South
helped to change the face of the South. Judge Frank Hull learned
from Judge Tuttle. She was part of his team.
Judge Clarence Cooper is currently a member of the Georgia
Court of Appeals. He was appointed to that position in 1990 and
just a few months later won a statewide election to that position.
Judge Cooper's career in the law has been long and impressive.
Upon graduation from Clark College, Judge Cooper entered How-
ard University School of Law. After 1 year, he came home to At-
lanta to study at Emory University Law School. He graduated from
the Emory University School of Law in 1967.
In 1967, after serving as Fulton Count^s first black assistant
district attorney, Clarence Cooper was appointed to the Atlanta
Municipal Court. He took a leave from the court in 1976 to pursue
his master's in public administration at Harvard University. In
1980, Judge Cooper was elected to the Fulton County Superior
Court. While there, he presided over the very high-profile missing
and murdered children case. On a personal note, let me say that
I know Judge Clarence Cooper, and I know him very well. We are
fortunate to have someone of his caliber with his commitment and
dedication to public service.
Now, let us look at Judge W. Louis Sands. He is from what we
call middle Georgia — I guess Senator Nunn's home area, Macon,
GA. I don't know him as well as I do the others, but I know his
reputation and his excellent reputation for hard work and a very
high standard of ethics.
Judge Sands went to Mercer University and the Walter F.
George School of Law. While in law school, he worked as chief legal
assistant to the district attorney, and while in law school Louis
Sands served in the Army Reserve. He resigned from the reserves
in 1978 at the rank of captain.
Following graduation from law school, Louis Sands spent 3 years
as assistant district attorney. In 1978, he was appointed assistant
U.S. attorney for the Middle District of Georgia. In 1987, he formed
his own firm, Mathis, Sands, Jordan & Adams, operating two of-
fices, one in Millersville and the other one in Macon.
Judge Sands brings to the Federal bench the very valuable per-
spective of a person that has spent long hours on the other side of
the bench, both as a Federal and State prosecutor and as a private
lawyer with a very diverse litigation practice. Mr. Chairman and
Senator Thurmond, I am pleased and proud to see him before you
today for your confirmation of his nomination to the Federal dis-
trict court.
I cannot emphasize how lucky and how blessed we are to have
these three outstanding Georgians. Their elevation to the Federal
court is good news for Georgia and it is good news for America.
Thank you, Mr, Chairman. Thank you. Senator Thurmond.
112
Senator KOHL. We thank you, Representative Lewis, and Senator
Nunn, Senator Coverdell. We will get back to your nominees in due
time. Thank you very much.
We have now James Carr from Ohio, to be introduced by the
Senators from Ohio, Senator Glenn and Senator Metzenbaum.
Senator Glenn.
STATEMENT OF HON. JOHN GLENN, A U.S. SENATOR FROM
THE STATE OF OHIO
Senator Glenn. Thank you Mr. Chairman and Senator Thur-
mond. Mr. Chairman and members of the committee, it is truly a
privilege to be here today to introduce to you Magistrate James
Carr. I want to welcome Magistrate Carr's family — his wife, Eileen;
his daughters, Maureen, Megan, Darrah, and Caitlin; as well as his
brother Tom. And his father, Edmund, flew in from Michigan to be
here today.
This is a day we have been looking forward to for a very long
time, but I think there is only one person who has been looking for-
ward to this day more than Jim, and that is Judge Potter back in
Toledo, who took senior status in August 1992, but has been faith-
fully coming in every day with a full caseload waiting for a new
judge to be appointed. Finally, that day has come and I can't think
of a more qualified person than Magistrate Carr to take the job.
Jim Carr has literally been in difect training to be a Federal
judge since 1979 when he was named a Federal magistrate in To-
ledo. Prior to that time, Jim enjoyed a distinguished and diverse
legal career in private practice, as a prosecutor, as a legal aid law-
yer, and as a professor of law. He has published extensively, and
not only in English. In fact. Magistrate Carr has published more
German law review articles than most German lawyers could ever
hope to publish. I think this provides sufficient evidence that he is
a real student of the law on a wide, wide scale.
I could go on and on, but I am not the one you want to hear from
today. Just let me add that Magistrate Carr is exactly the kind of
individual we need on the Federal bench. I believe he has the per-
fect blend of skills and experience to take on what is truly an awe-
some responsibility.
So I respectfully urge the committee to favorably review his nom-
ination. I am glad to give Magistrate Carr my highest rec-
ommendation; I know he will do a great job.
Thank you, Mr. Chairman.
Senator KOHL. We thank you, Senator Glenn.
Senator Metzenbaum.
STATEMENT OF HON. HOWARD M. METZENBAUM, A U.S.
SENATOR FROM THE STATE OF OHIO
Senator Metzenbaum. Mr. Chairman, in a certain way this is an
unusual nomination for me, and I think maybe for John Glenn as
well. I never met Magistrate Carr before the question of an opening
came up. I never heard of him. I never knew of him politically, I
never knew him socially, but suddenly there converged upon us
Senators an overwhelming outpouring of support for this man who
had been a magistrate for 15 years and many people said was
113
doing all the work that a judge should and could be doing, and
with no exception.
His reputation is impeccable. The lawyers of the community and
the people of the community all say that Magistrate Carr is truly
the person for the position, and I am just very proud to be sitting
here with Senator Glenn and urging his confirmation. I have no
doubt in my mind that he will make an excellent jurist.
John has already told you of some of his background, some of his
writings, some of the work that he has done in the past. I can only
say to you that this is a man whom I am sure will make a superb
jurist and I am very pleased to be here recommending him to you.
Senator Kohl. Well, we thank you very much, Senator Metzen-
baum and Senator Glenn, and we will get back to you. Magistrate
Carr.
We have now with us the two Senators from Louisiana, Senator
Johnston and Senator Breaux. We appreciate your patience in in-
troducing Carl Stewart.
STATEMENT OF HON. J. BENNETT JOHNSTON, A U.S. SENATOR
FROM THE STATE OF LOUISIANA
Senator Johnston. Mr. Chairman and Senator Thurmond, it is
a great personal pleasure for me to introduce to the committee
Judge Carl Stewart, who is the President's nominee to be judge for
the U.S. Fifth Circuit Court of Appeals.
It is a pleasure, first, because Carl Stewart is an old friend,
along with his family. By the way, I would like to introduce his
family. His wife and his son are here, if you would stand up. His
brother is here, and he also has a lot of friends who are with him
for this historic occasion.
Second, it is a great pleasure because he is highly qualified.
Third, it is a great pleasure because he is the first African-Amer-
ican ever to be nominated to the U.S. Fifth Circuit Court of Ap-
peals as it is presently structured.
Mr. Chairman, there is a great deal that I could say, and I have
a statement which I would like to put in the record which details
his many, many qualifications. I would only like to make one point,
and that is that he has been an elected district judge and court of
appeals judge in a predominately white city; he has been elected.
The Shreveport Journal, one of our newspapers there, did a sur-
vey of judges not too long ago. Let me tell you that the Shreveport
Journal stated that Judge Stewart "nearly swept the ratings. He
was a splendid judge, excellent in every respect, has been praised
for his judicial economy and fine judicial manner." I think that ar-
ticle in the Shreveport Journal says it all.
It is with a great deal of pride that I recommend to you Judge
Carl Stewart.
[The prepared statement of Senator Johnston follows:]
Prepared Statement of Senator J. Bennett Johnston
Mr. Chairman and members of the committee. I am very pleased to appeeir before
the committee today for the purpose of introducing to you Carl Edmond Stewart of
Shreveport, Louisiana, nominee to the United States Court of Appeals for the Fifth
Circuit.
It is most fitting that an individual of Mr. Stewart's high standards and eminent
qualifications be nominated for this very important position.
114
As a teenager in the 1960s, Carl Stewart witnessed the civil rights struggle of the
era and saw how the legal system could be used to bring about positive social
change. He was inspired by what he saw and decided to dedicate his life to helping
people through the legal system.
Carl Stewart comes to the committee with impressive credentials, having served
since 1991 on the Second Circuit Court of Appeals in the State of Louisiana. Mr.
Stewart is a 1974 graduate of the Loyola University School of Law in New Orleans.
Mr. Stewart has a distinguished career in law and public service. He has served
as a district judge in the First Judicial District Court, Division D, for the State of
Louisiana, in addition to working as an assistant United States Attorney for the
Western District of Louisiana and a special assistant to the District Attorney in
Shreveport, Louisiana.
Among the professional organizations to which Mr. Stewart holds membership are
the American Bar Association and Judicial Administration Division; the National
Bar Association and Judicial Council; the Louisiana State Bar Association, where
he is a member of the bench bar liaison committee; the Harry V. Booth Chapter
of the American Inns of Court in Shreveport, where he is a charter member; the
Black Lawyers Association of Shreveport-Bossier; and the Louisiana Conference of
Court of Appeals Judges.
Mr. Stewart has been widely praised for his judicial performance. In a survey of
judges, the Shreveport Journal declared that he "nearly swe[pt] the ratings." Mr.
Stewart has been described as "a splendid judge, excellent in every respect" and has
been praised for his "judicial economy" and "fine judicial manner," being "careful to
treat all parties with the same attitude and concern."
It is important to note that Judge Stewart has also served with distinction in a
wide variety of responsible positions outside the legal profession. He has been very
active in his community as a member of the board of directors for the Caddo-Bossier
Community Council, the Boys Club of Shreveport-Bossier, the Hap House
MultidisabiUty Work Center, GoodAvill Industries of Northwest Louisiana, the Salva-
tion Army Advisory Board, the Northwest Louisiana Sickle Cell Anemia Foundation,
the Northwest Louisiana Family Crisis Center, the Shreveport Opera, the Shreve-
port-Bossier Metropolitan YMCA, the American Red Cross, the Northwest Louisiana
Biomedical Research Foundation, and the Shreveport Chamber of Commerce.
Judge Stewart has been honored with awards from the Boys Scouts of America
and the Carver Branch YMCA. The Louisiana Chapter of the Jaycees named him
the Louisiana outstanding black man of the year and he received the black man of
the year award from Southern University's Shreveport-Bossier Afro-American Soci-
ety.
Judge Stewart frequently addresses student and professional groups, emphasizing
the importance of educational achievement and community service and the need for
African-American role models in business and public service. He is also a lay leader
of the Louisiana United Methodist Conference.
I have known Carl Stewart for several years and have found him to be profes-
sional and competent as a lawyer and community leader. Moreover, I am confident
he possesses the necessary judicial temperament to serve on the United States
Court of Appeals for the Fifth Circuit.
In sum, I believe that Mr. Stewart possesses the integrity, appropriate demeanor
and aptitude for legal scholarship that will enable him to serve well and with dis-
tinction if he is confirmed.
Mr. Chairman, Carl Edmond Stewart is imminently qualified to serve as a judge
to the United States Fifth Circuit Court of Appeals and I strongly urge the commit-
tee act favorably on his nomination.
Senator KOHL. Thank you, Senator Johnston.
Senator Breaux.
STATEMENT OF HON. JOHN B. BREAUX, A U.S. SENATOR FROM
THE STATE OF LOUISIANA
Senator Breaux. Thank you very much, Mr. Chairman and Sen-
ator Thurmond. Thank you for letting our delegation appear to rec-
ommend Judge Carl Stewart.
I think our colleague, Bennett Johnston, was right on target.
This is a very historic day. I mean. Judge Stewart will be the first
African-American to be appointed to the fifth circuit court of ap-
peals, as it is presently constituted, and you all know what an his-
115
toric circuit that has been in the area of human rights and civil
rights for all Americans. So it really is with a great deal of pride
that we are able to present Judge Stewart.
He really comes as a person who is not here just because of his
race. He is here because of the great background as a professional
jurist that he brings to this court. He has a degree in psychology,
which I think is always very helpful in these areas, and very im-
portant. This man has served as a captain in the U.S. Army in the
Judge Advocate General's Corps, so he brings a degree of experi-
ence about the Military Code of Justice which I think is also very
helpful.
In addition, as our colleague, Bennett Johnston, said, I really
think that to get to the circuit court, experience in the lower courts
is very important. I think it is very difficult just to pick up someone
who is a practicing attorney and make them a circuit court judge
because they haven't had that experience of sitting in a courtroom
in a day-to-day environment and hearing people who are real peo-
ple with real problems come before them.
Judge Carl Stewart has done that. As I said, he has been an
elected district court judge in Louisiana, an elected court of appeals
judge in Louisiana. He has been an assistant U.S. attorney. This
man has, by experience, by training, by background and education,
the credentials to make the type of judge that this Congress will
be very impressed with and all of America can be very proud of.
I recommend him to you.
Senator Kohl. We thank you. Senator Breaux.
We also have two Members of the House of Representatives here
with us. Representative William Jefferson and Representative Cleo
Fields.
Representative Jefferson.
STATEMENT OF HON. WILLIAM J. JEFFERSON, A REPRESENT-
ATIVE IN CONGRESS FROM THE STATE OF LOUISIANA
Representative Jefferson. Thank you, Mr. Chairman and mem-
bers of the committee. I am honored and pleased to be here today
with Senators Johnston and Breaux, and with my House colleague,
Congressman Fields, in presenting Judge Carl Stewart to this com-
mittee.
I believe that Judge Stewart will be an excellent addition to the
New Orleans Fifi;h Circuit Court of Appeals, located in the area
that I represent, and I applaud our Senators and President Clinton
for his nomination.
As the Senators have said, this is truly a historic day for this
committee, for the people of Louisiana, and indeed for our country.
As has been said, when confirmed. Judge Stewart will be the first
African- American to ever sit on the fifth circuit court of appeals.
The fifth circuit has been in the forefront of many areas of law,
from admiralty law to contracts law to constitutional law to em-
ployment law and natural resource law, but its most prominent de-
cisions have been in the area of civil rights law advances because,
unfortunately, the Southern States over which the fifth circuit has
had jurisdiction, have been all too fertile a ground for the fostering
of civil rights claims.
116
Judge Stewart's nomination completes the circle of opportunity
for African-Americans, from being shut out of the system as liti-
gants to having rights established through court decisions and stat-
utes to bring their claims and now to have Judge Stewart to give
this area of the law, and others, meaning borne out of peculiar ex-
perience.
The fifth circuit court of appeals has always had a long list of
outstanding jurists to serve on it. Judge Robert Ainsworth; Judge
Elbert Tuttle; Judge Robert Brown; Judge Alvin Rubin, for whom
I was privileged to clerk; and Judge Minor Wisdom, who continues
to serve as a senior judge, are among just a few of the outstanding
jurists who have served on this court. Judge Stewart will serve, I
believe, in this grand tradition.
Mr. Chairman, Judge Stewart is from a unique family, as Sen-
ator Johnston has said. He and his wife are the proud parents of
three children, and he has two brothers who are also judges —
Judge James Stewart of the Shreveport, LA, First Judicial District
Court and Capt. Richard Stewart, Jr., a military judge with the
U.S. Naval Pacific Fleet in San Diego, CA.
From the beginning, Judge Stewart's public judicial life has been
marked for success. He has been singled out by his colleagues as
an outstanding district court judge, and on the court of appeals he
has always been spoken of only in the highest terms as hard-
working, knowledgeable, decisive, competent, efficient, and fair.
Yes, Judge Stewart will bring diversity to the court of appeals, but
he will ^so bring a wealth of legal experience to the fifth circuit.
For these reasons, I strongly urge this committee to recommend
Judge Carl Stewart to the full Senate for confirmation to the U.S.
Court of Appeals for the Fifth Circuit. Mr. Chairman, I appreciate
the opportunity to appear before you this afternoon and I thank the
committee for its time.
Senator Kohl. We thank you. Congressman Jefferson.
Congressman Fields.
STATEMENT OF HON. CLEO FIELDS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF LOUISIANA
Representative Fields. Thank you, Mr. Chairman, Senator Thur-
mond, and my colleagues from Louisiana. It is a pleasure to be
here to speak on behalf of Judge Stewart who lives in my district
and for whom I have a great deal of respect. But one of the dis-
advantages I have, Mr. Chairman, is whenever you come last, most
of the things that you wanted to say have already been said. Let
me just say that if Judge Stewart was before the court today, he
would simply say, after these three statements, "Your Honors, I
rest my case."
Judge Stewart graduated from Booker T. Washington High
School with honors and from Dillard University in Louisiana
magna cum laude in 1971, Mr. Chairman. He graduated from Loy-
ola Law School in 1974. He practiced military law, served as assist-
ant attorney general, then served as an assistant attorney vvith the
district attorney's office in Louisiana. He practiced extensively in
private practice as well, so he brings a vast amount of experience
to the bench. He was elected and reelected as district court judge
and then was elected to Louisiana's Second Court of Appeals.
117
He is a member of many organizations, not only in the State of
Louisiana, but throughout this entire Nation. He was a past board
member of the Shreveport Chamber of Commerce, and also a board
member of the American Red Cross. He has served on many com-
munity organization boards. I think the most unique part of his
credentials is his hard work to help young people within the
Shreveport community.
Mr. Chairman and Mr. Thurmond, Shreveport is a community
where a lot of our young people turn to drugs and alcohol. Judge
Stewart is out there every Saturday working with young people to
keep them from turning to drugs and alcohol. He has a program
within the Shreveport community that I am very proud of, and I
don't think you could find a better person to confirm for the court.
So, finally, I can sum it up by saying: This man is fair, but he is
also firm.
Senator KOHL. Well, we thank you very much, Mr. Fields, Sen-
ators, and Congressman.
We are going to begin with Judge Stewart. Judge Stewart, you
have been nominated to be circuit court judge for the Fifth Circuit
Court of Appeals. Would you please raise your right hand?
Do you swear that the testimony you shall give in this proceed-
ing shall be the truth, the whole truth and nothing but the truth,
so help you Grod?
Judge Stewart. I do.
Senator Kohl. Judge Stewart, if you have any members of your
family — and I know you have them with you — we would be happy
to have you introduce them to us at this time.
TESTIMONY OF CARL E. STEWART, SHREVEPORT, LA, TO BE
U.S. CIRCUIT JUDGE FOR THE FIFTH CIRCUIT
Judge Stewart. Thank you. Senator. I will be brief As men-
tioned, I am very proud to have my family with me — my father,
Richard G. Stewart, Sr., if my dad would stand; he is a retired let-
ter carrier. My mother is deceased. My father is here; my older
brother, Richard G. Stewart, Jr., who is a captain in the U.S. Navy.
My wife, Jo Ann, is present here. One of my children, our baby
child, Kyle, is present. Our older two children are in school and
could not be here with us.
My nephew, James T. White, is present, also, and I have a host
of friends and supporters and staff that are here that I am ex-
tremely proud to have come and support me, and briefly if they will
just stand?
[The persons stood.]
Senator KOHL. All right, that is great. We welcome you all here
today.
Judge Stewart. Thank you.
QUESTIONING BY SENATOR KOHL
Senator Kohl. I have just a couple of questions and then I will
turn it over to Senator Thurmond.
Judge Stewart, if you are confirmed as an appellate judge, at
some point you may be faced with applying a Supreme Court prece-
dent with which you do not personally agree. Would you consider
yourself to be bound by such precedent?
118
Judge Stewart, Yes, sir; absolutely, Senator.
Senator KOHL. You will also be faced with cases involving issues
on which the Supreme Court has not ruled. In many of those cases,
however, you will have decisions from the fifth circuit on which to
rely. Under what circumstances, if any, do you believe an appellate
judge should overturn precedent within his or her own circuit?
Judge Stewart. Senator, in the circumstance where the Su-
preme Court has not ruled, I would be bound by the law of the cir-
cuit, in this case the fifth circuit, to follow that law as binding
precedent on me as one of three in a panel. If there was reason to
believe that precedent should be overturned, that would only occur
in a situation where the en banc court decided to reverse the law
in that circuit. Otherwise, I would be bound to follow the law of the
circuit.
Senator KOHL. Judge Stewart, rule 11 of the Federal Rules of
Civil Procedure allows judges to impose sanctions against lawyers
or parties who file frivolous lawsuits. Recently, there has been
much debate over the courts' increased willingness to punish liti-
gants under rule 11. Some lawyers argue that the rule, as applied,
sometimes chills creative arguments in developing areas of the law,
such as civil rights. As the chief judge of the New York Court of
Appeals has put it: "Today's frivolity may be tomorrow's prece-
dent."
What do you think of these concerns, and how might you respond
to them on the court of appeals?
Judge Stewart. Senator, I am aware of the discussion and de-
bate over the imposition of rule 11 sanctions. Like many rules, it
requires a balancing test, that which certainly is measured by the
need to control litigation and ensure that only those cases which
are justiciable should be within our courts. The Federal courts are
courts of limited jurisdiction and limited time, and those cases
should be handled.
On the other hand, in a burgeoning era of litigation, there are
a lot of different lawsuits that are brought and I think that rule
11 should be applied reasonably and only in those circumstances
where it absolutely is required to be imposed.
Senator KoHL. Finally, an issue currently before the pro bono
legal community is whether work for the disadvantaged should be
a mandatory or voluntary requirement for lawyers. We see that be-
cause of your judicial role, you have provided nonlegal pro bono
services in the past, including your time with the Boy Scouts and
your positions on the boards of youth service organizations.
In your view, do you think pro bono work should be a mandatory
or a voluntary requirement for lawyers?
Judge Stewart. Senator, mandatory pro bono would probably
produce more lawyers doing pro bono work. However, a compelling
argument can be made that by providing incentives for lawyers to
do it voluntarily will also bring about more lawyers, but they will
gain greater satisfaction from doing it because they want to do it.
Lawyers tend to not want to be mandated to do things, and so a
great argument can be made that mandatory pro bono should be
a case of last resort.
Senator Kohl. I thank you.
Senator Thurmond.
119
QUESTIONING BY SENATOR THURMOND
Senator Thurmond. Thank you, Mr. Chairman. Judge, we are
glad to have you with us.
Judge Stew^t. Thank you, sir.
Senator Thurmond. Thomas Jefferson remarked shortly after
the ratification of the Constitution these words, "Our nation's par-
ticular security is the possession of a written Constitution. Let us
not make it a blank paper by construction." What do you think he
meant by that warning, "Let us not make it a blank paper by con-
struction?"
Judge Stewart. I am not absolutely sure. Senator, what he
meant, other than to mean that judges in applying the Constitution
should look to its words and look to apply it in situations narrowly
where a constitutional issue is raised and not merely in situations
where there may be some other statutory basis or some other Fed-
eral common law upon which to decide a controversy.
Senator Thurmond. The way some judges have construed the
Constitution appears unreasonable, £ind I do think we have got to
be careful how we construe the Constitution. All we have got to
do — it is written very plainly — is follow the Constitution.
Now, I think judicial temperament is a very important quality of
a judge. I have seen some Federal judges yell at lawyers, jurors,
witnesses, and that is inexcusable. The more power you have, the
more humble a person ought to be. A judge has all the power, even
over life and death, and therefore I think he ought to be very hum-
ble. How do you feel about that?
Judge Stewart. I would agree with you. Senator. I have always
believed that a judge, whether elected or appointed, is a public
servant and that he or she should accord himself to lawyers and
litigants with that in mind and should exercise only the amount of
power necessary in order to allow litigants to resolve their dif-
ferences in the courtroom.
I have been very proud of an ability to hopefully have people
leave my courtrooms feeling that they got a fair shake even if they
disagreed with the outcome, but to feel that the atmosphere of the
courtroom was a fair one.
Senator Thurmond. You have a fine record and I wish you well
on the bench.
Judge Stewart. Thank you, sir.
Senator Thurmond. Thank you, Mr. Chairman.
Senator KOHL. We thank you very much, and you are excused.
Judge Stewart. Thank you, Mr. Chairman.
Senator KOHL. Our next nominee is Judge James Carr, who has
been nominated to be district judge for the Northern District of
Ohio.
Judge Carr, would you raise your right hand? Do you swear that
the testimony you shall give in this proceeding shall be the truth,
the whole truth and nothing but the truth, so help you God?
Judge Carr. I do.
Senator Kohl. Thank you, sir. You may sit down, and we would
be happy to be introduced to members of your family if they are
here with you.
120
TESTIMONY OF JAMES CARR, TOLEDO, OH, TO BE U.S.
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OHIO
Judge Carr. With me today, and it is a great honor for me and
it is a thrill for me for them to share in this honor, are, first, my
father, Edmund Carr, who is in his 82d year. At age 65, after retir-
ing from a successful career, he went to law school and he is still
an active and productive member of our family and society.
After him, I would like to introduce my wife, who is a part of ev-
erything I have ever done and ever been, and she, of course, is the
mother of our four daughters, Maureen, Megan, Darrah, and
Caitlin. I am happy, as well, to have my brother, and my brother-
in-law and my sister-in-law and their children, and several other
people.
Senator KOHL. Well, we are happy to have you all with us here.
Judge Carr. Thank you.
Senator Kohl. Before I ask you a question, I would like to men-
tion to you and people here today that Judge Carr comes highly
recommended by my very good friend, for whom I have the highest
regard, E. Michael McCann, the Milwaukee County district attor-
ney. I have a wonderful letter in your behalf from District Attorney
McCann and I will put it in the record at this point.
Judge Carr. Thank you.
[The letter referred to follows:]
Office of Dsitrict Attorney,
Milwaukee County,
Milwaukee, WI, April 18, 1994.
Senator Herb Kohl,
Hart Senate Office Building,
Washington, DC.
Dear Senator Kohl: I understand that the appointment of James G. Carr to the
Federal District Court for the Northern District of Ohio will be before the Senate
Judiciary Committee on Thvu^day, April 21, 1994. Mr. Carr would be a truly excel-
lent judge and I urge the committee to confirm his appointment.
Mr. Carr and I have served together for several years on the Board of Directors
of the Nationad Pretrial Services Resource Center, a not-for-profit corporation which
addresses the array of problems in the pretrial portion of the criminal justice sys-
tem. From my personal observations, I know Mr. Carr is a man possessing sound
judgement and a strong work ethic.
First as a law teacher and then as a federal magistrate, James Carr has consist-
ently demonstrated superior legal scholarship. His opinion as a magistrate in United
States V. Steven Wayne Yee, case No. 3:89 CR 0720, Northern District of Ohio, West-
em Division, is the finest legal evaluation of DNA, in my estimate, that has been
written.
I have taken the liberty of attaching a copy of Magistrate Carr's resume. His ex-
perience and publications further highlight his outstanding qualifications for the
federal judiciary.
James G. Carr is a man concerned with justice. He is felicitously graced with pa-
tience, common sense, unimpeachable integrity and a very fine mind.
I keenly recommend his confirmation and would be delighted if you see fit to in-
clude this letter in the hearing materials.
Sincerely yours,
E. Michael McCann,
District Attorney.
QUESTIONING BY SENATOR KOHL
Senator KoHL. Judge Carr, you have served as a Federal mag-
istrate for 15 years. In many respects, you have performed duties
similar to those of a Federal district court judge. If you are con-
121
firmed, how do you foresee your responsibilities changing on a day-
to-day basis from those exercised now as a U.S. magistrate?
Judge Carr. The principal change will be that I will be respon-
sible for the trial and also taking guilty pleas in felony cases and,
of course, sentencing in felony cases. Other than that, in terms of
my daily routine, I foresee practically nothing changing, except the
workload getting even bigger.
Senator KOHL. From your broad experience as a magistrate, can
you offer any suggestions to us on how to improve magistrates' cur-
rent role in the judicial system?
Judge Carr. I think quite candidly, Senator, that if all judges,
all district judges, could treat and assign the responsibilities to the
magistrates in the way that I have been treated for almost 15
years by the judges in our court, that would probably be a substan-
tial enhancement of the role that magistrates play. I have been ex-
tremely fortunate to work closely and well and be treated as a peer
by outstanding district judges.
Senator KOHL. I understand. Judge, that early in your legal ca-
reer you were a staff attorney with the Cook County Legal Assist-
ance Foundation. As part of your daily caseload, you represented
almost exclusively poor and disadvantaged clients. What role, if
any, and how, do you think a judge has in ensuring that the poor
and disadvantaged have access to the legal system?
Judge Carr. Well, of course, I think that there should be no im-
pediment to anyone coming into court. I routinely sign petitions to
proceed pro se and in forma pauperis. I perhaps should mention
that, at my suggestion, the Toledo Bar Association about 2 years
ago proposed to the district court of our district a procedure for de-
veloping a fund so that attorneys who take on pro bono cases for
indigent civil plaintiffs and civil defendants would be able to be re-
imbursed or have a modest amount of money paid to them to com-
pensate them for direct out-of-pocket costs. We had no such fund
of that sort in our court.
I will only say that, if confirmed, I hope to recall that proposal
to the attention of my colleagues and to take speedy action on it.
I think that perhaps one of the great instances of unfairness in our
system is the inability of civil plaintiffs and defendants to obtain
counsel who will represent them faithfully and competently.
Senator KoHL. A last question before I turn it over to Senator
Thurmond. Mandatory minimum sentences have been the subject
of much debate. In fact, yesterday at a hearing that I chaired, two
Federal circuit court judges criticized mandatory minimums, and
one of my colleagues called them a "rule of thumb rather than a
rule of reason."
As a Federal judge, what would you do if faced with a situation
where you vvere called upon to impose a sentence that you felt was
too harsh either because of a mandatory minimum or because it
was called for by the sentencing guidelines? What would you do in
that case?
Judge Carr. I would be required to impose the sentence that was
required by law.
Senator KOHL. How do you feel about mandatory minimums?
Judge Carr. I think that they are troublesome in a couple of re-
spects. One is that they can have a tendency to undercut the effect
122
of the sentencing guidelines and the Sentencing Commission. Sec-
ond, they make it extremely difficult, if not impossible, to treat sep-
arate cases and individusds separately when those persons are con-
victed of the same statutory offense.
Senator KOHL. All right, thank you.
Senator Thurmond.
QUESTIONING BY SENATOR THURMOND
Senator THURMOND. Thank you, Mr. Chairman. We frequently
hear the argument that courts act in response to various social
problems because the legislature has failed to act on its own. How
would you respond to this defense of an activist judiciary?
Judge Carr. I don't think it is much of a defense at all. I don't
think it is a position that can be asserted at all. I think that the
court — the last thing any court should be doing is acting either in
response to its perception of some social problem or its personal
view or outlook as to how things ought to be. We are constrained
by the law, beginning with the Constitution, the statutes and the
precedent and the rules that have been adopted to guide us in our
procedure, and that is the only place we can look in performing our
duties.
Senator Thurmond. Judge, someone called my attention to a
speech you made in 1990 to the New Probation and Pre-Trial
Chiefs Conference. It is alleged that you stated, 'The past couple
of years have encompassed the most thoroughgoing change in
penalogical philosophy in our country's history — a shift from reha-
bilitation to prolonged and thoroughgoing incapacitation." This ar-
ticle says you claimed that in making this shift, Congress has
manifested an approach that probably can best be described as
gulag syndrome.
Would you tell us what you meant by that?
Judge Carr. What I meant by that. Senator, was that as a result
of sentencing reform, principally mandatory minimum sentences,
we have many people, often quite young, people in their early 20's,
charged with very serious offenses, but, as a result of the Federal
sentencing structure, find themselves confronted with very long
terms of incarceration, including life imprisonment.
And what I meant by that was that we have substituted what
historically had been an intent or a desire to undertake to rehabili-
tate people, particularly younger persons charged with serious of-
fenses and convicted of very serious offenses, and instead have
adopted an approach that in many respects sends them away, inca-
pacitates them and obviously protects society in that regard, while
at the other hand turning our back to a fair extent on the rehabili-
tative efforts.
Senator Thurmond. Do you continue to believe that Congress'
approach to sentencing can best be described as the gulag S3ni-
drome?
Judge Carr. I think that when one adopts particularly manda-
tory minimum sentences that mandate in all instances extremely
long or very long periods of incarceration, up to and including life
terms when you start multiplying sentences — I think that that, al-
though a very strong statement, is one observation. Let me make
clear, however, as I said to Senator Kohl — and this is obviously
123
something anyone in this position, anybody contemplating the
honor of being confirmed by the Senate, considers, and I have abso-
lutely no doubt whatsoever that when called upon to do so, I will
apply the sentencing guidelines and the mandatory minimums
faithfully and in full accordance with the law and as required by
Congress.
Senator Thurmond. Was your purpose in making this statement
to criticize the Congress, or what was your purpose?
Judge Carr. My purpose may have been to criticize the Con-
gress. I think it was more to express concern about the displace-
ment of rehabilitation as a paramount penalogical goal.
Senator Thurmond. At the time you made this statement, you
were a Federal magistrate?
Judge Carr. Yes, sir.
Senator Thurmond. Do you believe that persons are being held
in U.S. prisons solely because of their political views?
Judge Carr. No, sir, absolutely not, under no circumstance, and
if that is an interpretation of that phrase or statement, that is ob-
viously incorrect in terms of my expression.
Senator Thurmond. That is all, Mr. Chairman.
Senator KoHL. We thank you. Senator Thurmond, and we excuse
you. Judge Carr.
Judge Carr. Thank you. Senator Kohl.
Senator KOHL. We now have Judge Clarence Cooper. Judge Coo-
per has been nominated to be district court judge for the Northern
District of Georgia.
Judge Cooper, would you please raise your right hand? Do you
swear that the testimony you shall give in this proceeding shall be
the truth, the whole truth and nothing but the truth, so help you
God?
Judge Cooper. I do.
Senator KOHL. We thank you, sir. Be seated. If you have any
members of your family with you, we would be delighted in getting
to know them.
TESTIMONY OF CLARENCE COOPER, ATLANTA, GA, TO BE U.S.
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA
Judge Cooper. Thank you. Mr. Chairman, Senator Thurmond, I
would like to introduce members of my family at this time, and I
do want them to stand since they are seated in the rear of this au-
dience.
My wife, Shirley, will you please stand? My mother. Hazel Coo-
per; my mother-in-law, Ms. Lillie Mae Elder; my daughter, Jennae
Cooper; and my son, Corey Clarence Cooper. I have two family
members seated up front, to my left. Emmanuel and Pamela
Payton, will you both stand?
[The persons stood.]
Senator KOHL. Well, we are delighted to have you all here with
us today.
Judge Cooper, in 1981 and 1982, you presided over the highly
publicized trial of Wayne Williams, the man who was found guilty
of murdering 2 of the 28 young blacks who were killed in Atlanta.
Citing potential harm to the city's children, you at that time re-
fused to allow television cameras in the courtroom during that
124
trial. Having cameras in the courtroom sometimes requires a bal-
ance between the value of a free press and the interest in having
justice rendered fairly and without distortion.
Do you, sir, believe that TV cameras should ever be permitted in
Federal courtrooms?
Judge Cooper. I am a proponent of cameras in the courtroom,
and despite the ruling that I entered in that case, I personally felt
that maybe the case should have been televised, but I received so
many letters from psychiatrists, mental health experts, and child
psychologists who suggested that probably the case shouldn't be
aired simply because so many children had experienced traumatic
psychological and emotional problems.
And I don't know whether or not you are aware of it. Senator,
but I did hold a hearing on that issue as to whether or not it
should be televised. During that evidentiary hearing, I heard from
mental health experts, psychologists, psychiatrists, social workers,
and other people from other disciplines, and all of them, except one
person, felt that the case should not be aired because of the trauma
that these kids experienced, and they felt that if it were televised,
then these traumas would recur. So I acted on what was in the
record, and the decision was one with which both parties agreed.
QUESTIONING BY SENATOR KOHL
Senator KoHL. So I would take it, as a Federal judge, if it were
permissible, you would allow cameras in your courtroom?
Judge Cooper. I think it brings about a greater understanding
on the part of the public as to what we do, particularly when it
comes to the civil process because it is so complicated and cum-
bersome, and I think many people fmd that more of a mystery than
they do the criminal process. So I think it would be something that
the public could benefit from, were they able to see a civil trial in
Federal court from time to time.
Senator KoHL. In the past few years, there has been a growth
in the use of secrecy orders in product liability, malpractice, and
environmental cases. Critics of this trend claim that those orders
prevent the public from learning about very serious threats to pub-
lic health and safety.
During your years in private practice, I know you had broad ex-
perience in civil litigation. Judge Cooper, how should a judge who
hears a request to make documents in such cases confidential bal-
ance the public's right to know against a litigant's right to privacy?
Judge Cooper. Senator, that is a very difficult task to undertake,
as you know. It requires much of a judge and, of course, I did han-
dle several cases involving that issue. The judge has to do a bal-
ancing act; he has to weigh the interests of both sides, the public's
right to know as opposed to the litigant's right to keep certain mat-
ters confidential and private.
Some of these matters are very sensitive matters and some may
involve people not directly or indirectly a part of the lawsuit, but
may affect them adversely. Also, a judge should be guided by some
of the parameters he may consider and how the law has been
evolving in this area in terms of his ultimate decision. But I think
his decision should be a reasoned one and it should be based on
125
not only what is in the best interests of the public, but also the
rights of the litigants.
Just remember, these are private litigants who themselves some-
times agree that maybe certain matters should be kept secret not
only to protect themselves, but to protect other people.
Senator KoHL. Well, let me ask you this. I have introduced legis-
lation that would prohibit judges from allowing confidentiality or-
ders when the information sought to be made secret relates to pub-
lic health and safety. It would prohibit confidential orders when we
are talking about public health and safety.
Yesterday, we held a hearing on this measure, but opponents of
the bill made the following argument, and I think you mentioned
it just a minute ago, that the civil justice system is about settling
private disputes between parties and not necessarily protecting the
public interest. How do you
Judge Cooper. Don't misunderstand me. That is one of the con-
siderations one must make in balancing the various interests.
Senator KOHL. Well, how do you feel about a law that would say
when public health and safety is involved, a judge cannot allow a
secrecy order?
Judge Cooper. Senator, I don't want to prejudge what might be
before me as a Federal district court judge, and that very issue
might arise and I don't want to commit myself at this time. I can
only say that I would balance the competing interests and make a
decision that I think would be fair to the parties involved, but I
don't want to commit myself to a position at this time.
Senator KoHL. All right, very good. You should be running for of-
fice. [Laughter.]
Senator Thurmond.
QUESTIONING BY SENATOR THURMOND
Senator Thurmond. Thank you, Mr. Chairman. I believe you
were in the Army 2 years in the Judge Advocate General's Corps?
Judge Cooper. Yes, I was.
Senator Thurmond. I guess you found that an interesting experi-
ence.
Judge Cooper, Quite interesting.
Senator Thurmond. What was your rank there?
Judge Cooper. I was an E-6, a specialist E-6, when I came out
of service after my 2-year stint — ^E-6.
Senator Thurmond. You served as a Fulton Superior Court judge
and on the Georgia Court of Appeals, also — 10 years on the Fulton
court, and you are still on the court of appeals, is that right?
Judge Cooper. Yes. I presently serve on the Georgia Court of
Appeals, where I have been for the last 4 years. Prior to that, I was
on the Fulton Superior Court bench 9 years.
Senator Thurmond. Which type work do you like the best?
Judge Cooper. Well, I am willing to return to the trenches. I
think I found that much more exciting than the work that I do as
an appellate court judge, although I really enjoy my appellate court
work, but I do miss tremendously being a part of that whole proc-
ess that we call the jury trial system. So I would love to return to
that.
126
Senator Thurmond. Do you see any difficulty in transferring
from that type of work
Judge Cooper. Having been on the bench for 18 years — I am
sorry, Senator; go ahead.
Senator Thurmond. You didn't let me get through.
Judge Cooper, OK, that is right. I am sorry.
Senator Thurmond. Do you see any difference in the work you
did then and the work you will do now as a judge of the Northern
District of Georgia?
Judge Cooper, The only difference would be the kinds of cases
that I would be exposed and handling, were I confirmed and be-
came a Federal district court judge, but I think the skills are basi-
cally the same. I have been at judging for now 18 years, having
served as a city judge, a county judge, and now on the State appel-
late court. So I have been able to acquire certain skills over the
years that should aid me in this transition.
But there are areas of the Federal law that I have never been
exposed to — title VII cases, antitrust cases, tax cases, patent rights
cases, and other cases of this nature, and those are cases that I am
looking forward to if confirmed by the Senate.
Senator Thurmond. How would you handle an instance in which
counsel for one of the parties in your court was obviously not a
skilled litigator and not prepared to adequately represent the inter-
ests of his or her client?
Judge Cooper. That is a very difficult question, I have been con-
fronted with that on several occasions, and I understand that, you
know, as a judge I must respect the wishes of one of the parties
as to whom he or she wants as his or her attorney. That issue is
even more pronounced in criminal matters than civil matters, but
I respect the issues of the parties as to whom they want to des-
ignate as their lawyers and I try not to interfere, although from
time to time a judge may do some things to help the case along.
But that is something that a judge is very uncomfortable with
when there is a mismatch in court. One of the parties to the litiga-
tion has an incompetent lawyer and the other side has a very com-
petent lawyer, and so you have to live with those results, regret-
tably.
Senator Thurmond. Under the Constitution, we have three
branches of government. The legislative branch, the Congress,
makes the law. The executive branch, headed by the President, ad-
ministers the law. The judicial branch, headed by the Supreme
Court, interprets the law.
Now, we have found that in some cases some of the judges, if
they didn't like the law, f^lt they had a right to modify it and use
their own opinions. How do you feel about that?
Judge Cooper. Well, I think it would be wrong for a judge to ig-
nore precedent, stare decisis, to usurp the power of the legislative
branch of government. Judges are not there to make law. We are
there to interpret and apply law.
Senator Thurmond. Some call it judicial activism, taking to their
power something they don't have. Your job as a judge is to inter-
pret the law and not make the law.
Judge Cooper. I understand that.
Senator Thurmond. Do you agree with that?
; 127
Judge Cooper. Wholeheartedly.
Senator Thurmond. That is all. Thank you.
Judge Cooper. Thank you.
Senator KoHL. We thank you, Judge Cooper, and you are ex-
cused.
Judge Cooper. Thank you.
Senator KOHL. Our next nominee is Judge Frank M. Hull. She
has been nominated to be district court judge for the Northern Dis-
trict of Georgia.
Judge Hull, will you raise your right hand? Do you swear that
the testimony you shall give in this proceeding shall be the truth,
the whole truth and nothing but the truth, so help you God?
Judge Hull. I do.
Senator KoHL. Thank you, Judge Hull. If you would like to intro-
duce any members of your family, we would be delighted to meet
them.
TESTIMONY OF FRANK M. HULL, ATLANTA, GA, TO BE U.S.
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA
Judge Hull. Thank you. First, Senator Kohl, I would like to
thank you for chairing the hearing on this busy afternoon for you,
and I would like to thank Senator Thurmond for your presence on
this busy afternoon for you.
At this time, joining me are my family members from Georgia:
my husband, Tony Aeck; my two children, Richard Hull Aeck, and
our daughter, Molly Hull Aeck; my mother, another Frank— she is
Frank Mays Pride; my uncle, Inman Mays; my sister, Carol Hull
Palmer; my brother, James Meriwether Hull; a close family friend,
Ms. Wilma Hudson; a cousin, Katherine, Mays; another close fam-
ily friend, Terry Adamson, from Washington, DC, who was my law
school classmate 20 years ago; two other close family friends, Mark
Eaton and Brooksie Koopman; my cousin, Richard Sullivan.
I have my secretary of 12 years, Darlene Buchanan, who is here.
I have my current law clerk, Diana Willis, and I am proud to have
two former law clerks, Theresa Gilstrap and Renata Turner, here
with me today.
Senator KOHL. Well, we are delighted to have such a consider-
able entourage. [Laughter.]
Judge Hull. And I appreciate your allowing me to introduce all
of them.
QUESTIONING BY SENATOR KOHL
Senator KOHL. Well, we thank you. This hearing was originally
scheduled for a smaller room, and I went to that room before and
it was empty and they told me to come down here to this larger
room. Now, I know why.
Judge Hull, much of your experience has been in State court. If
confirmed, you will face a docket that includes a heavier caseload
of constitutional, employment, and civil rights cases. What steps do
you plan to take to familiarize yourself with those areas of the law
with which you may lack experience at the present time?
Judge Hull. There would be a number of steps I would follow.
First, on the district court, if I am confirmed, that I would be join-
ing, several of the judges have an in-house training program for
128 \
the other judges. Our chief judge has already informed Judge Coo-
per and me, if we were confirmed, that would be occurring over the
next 4 months.
I would also take advantage of the materials that have already
been sent to all of us from the Federal Judicial Center, as well as
the various orientation programs that you have the opportunity to
attend as a Federal judge, if confirmed.
Senator KoHL. Very good. Judge Hull, I understand that Atlanta
has something called the Atlanta Project, which is designed to at-
tack poverty at its roots by dividing Atlanta and surrounding coun-
ties into cluster communities and employing coordinators to guide
local residents in seeking ways to enhance their quality of life.
In October 1993, you piloted an effort in the Washington Cluster
in which residents became voluntary probation officers and coun-
selors for first-time nonviolent offenders. Could you tell us how suc-
cessful that program was and did it, in fact, spread to other parts
of the city, as was originally hoped?
Judge Hull. The Atlanta Project wants to undertake any new
program as a pilot for at least 2 years, so it has not spread yet be-
cause they want to work out all of the problems in the program,
so it has not spread and, frankly, it is too early to tell. However,
we have a neighboring jurisdiction that has used such a program,
Cobb County, and it has been extremely successful there.
Senator Kohl. Judge Hull, Congress is contemplating legislation
aimed at reducing overcrowding in Federal courts by allowing Fed-
eral judges to assign some of their smaller cases to court-appointed
arbitrators. Now, many judges and lawyers have expressed con-
cerns about this approach. They say that it infringes upon the
rights of citizens to a jury trial. What do you think about this? Do
you have any thoughts to offer us?
Judge Hull. In Fulton County, we have had an arbitration pro-
gram for 10 years that I have used very frequently as a trial judge,
and this has been our experience. The arbitration program has
three court-appointed arbitrators from lawyers and other citizens
who volunteer to serve or who are paid if they do not volunteer.
We assign a case to arbitration at a very early phase in the case.
It is nonbinding arbitration; that is, the decision is nonbinding, but
it is binding that you must attend the arbitration. Lawyers are
given 1 to 2 hours to present their side. The arbitrators make a de-
cision, and then if someone is dissatisfied, they have 30 days in
which to simply write a letter, no cost, and say I want my jury
trial. That program has been extremely successful.
In Atlanta, we are assigned 1,800 new cases. In fact, my Federal
court caseload will be less considerably in terms of number of cases
than my current State caseload. We have found arbitration — 50
percent of the cases settle before they even go to the arbitration be-
cause they were going to settle anjrway. Another 25 percent settle
within 3 months after the arbitration. I favor it in a nonbinding ar-
bitration matter.
Senator Kohl. I thank you. That is a very good answer.
Senator Thurmond,
QUESTIONING BY SENATOR THURMOND
Senator Thurmond. Thank you, Mr. Chairman.
129
I notice you were bom in Augusta, GA.
Judge Hull. Yes, and I have — all my relatives here are mostly
bom in Augusta, too. Senator.
Senator Thurmond. I live at Aiken, just 17 miles from Augusta.
I had two brothers that were obstetricians at Augusta, Dr. William
Thurmond and Dr. Greorge Thurmond.
Judge Hull. And I know of them, sir, and you may have known
of my grandfather, Jim Hull, from Augusta, many years ago.
Senator Thurmond. You don't anticipate any difficulty in chang-
ing to a new type job as a Federal judge from what you are doing
now, do you?
Judge Hull. No, sir, I do not.
Senator Thurmond. Do you believe that a judge should assume
direct control over complex issues and cases in order to avoid
delays in effective management of such cases?
Judge Hull. Yes, sir, I do. In fact, 100 years ago you could just
hear the case and decide it. Today, you have an equally important
role to be a hands-on case manager because of the explosion in liti-
gation. Particularly with my State court caseload, I have done that
through a number of techniques, which I would be glad to expound
upon if you would like, already for the last 10 years as a trial
judge, sir.
Senator Thurmond. What do you believe will be the most re-
warding aspect of serving as a Federal judge?
Judge Hull. The same rewarding aspect I have had for 10 years
as a trial judge, attempting to help litigants resolve disputes in a
peaceful, orderly fashion earlier than later.
Senator Thurmond. I don't think I have any further questions.
I wish you well on the bench.
Judge Hull. Thank you. Senator.
Senator KOHL. We thank you. Judge Hull.
Judge Hull. Thank you, Senator Kohl.
Senator KOHL. Our next nominee is Mary Lisi, who has been
nominated to be district court judge for the District of Rhode Is-
land.
Ms. Lisi, if you would raise your right hand, do you swear that
the testimony you shall give in this proceeding shall be the truth,
the whole truth and nothing but the truth, so help you God?
Ms. LiSL I do.
Senator KOHL. We thank you. You may be seated, and if you
have any members of your family here, we would love to meet
them.
TESTIMONY OF MARY M. LISI, PROVIDENCE, RI, TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF RHODE ISLAND
Ms. LiSL I do. I am very happy to say that my husband, Stephen
Reid, is here with our two children, Jonathan, who is 13, and Jef-
frey, who celebrated his 10th birthday 2 days ago, along with my
mother-in-law, Eleanor Reid. I have some friends here, also, from
the State of Rhode Island — Jason Zaborsky, who is a student at
American University, and also Beth Bailey and her husband, Bob
Bailey.
130
QUESTIONING BY SENATOR KOHL
Senator KOHL. Well, we are delighted to have you all here today.
Ms. Lisi, your questionnaire indicates that you have served as an
assistant public defender, as a child advocate, and most recently as
chief disciplinary counsel. If confirmed, how do you plan to make
the transition from advocate to impartial arbiter?
Ms. Lisi. I have already begun to think along those lines. Sen-
ator Kohl, in terms of the kinds of studying that I will need to do
to bring myself up to speed, and also to start thinking of myself
less as a proponent of a particular position, but rather as an arbi-
ter of disputes.
Senator Kohl. All right. Why do you want this job?
Ms. Lisi. Senator, my entire professional career has been dedi-
cated to public service. It is something that I enjoy. It is something
that I have given a great deal of my personal energies to because
I receive so much back in the way of satisfaction. I can think of
no higher honor and no higher aspiration for a practicing attorney
than to serve as a Federal court judge.
Senator Kohl. Recently, there has been a growing concern about
violent juvenile crime at both the State and Federal levels, as you
know. In part, as a response, we have begun to see a trend to open
more juvenile records, as adult records already are. As a one-time
public defender, what do you think about this trend?
Ms. Lisi. I can only tell you my own experiences in the juvenile
area, which are now somewhat aged because I have been out of
that system for several years. I can tell you that when I started
as a public defender in 1977 in the juvenile division, we were deal-
ing with children who were committing the kinds of offenses that
one would almost expect to see in the juvenile courts. But by the
time I ended my tenure with the public defender's office, we were
seeing children coming in at much younger ages committing much
more serious offenses.
I think that what you are suggesting as far as looking at those
records is very important in order for us to understand how we can
work with those individuals who have committed crimes as adults
and what kinds of services or incarceration may be necessary in
order to protect the public from them.
Senator KOHL. You pointed to the fact, and I alluded to it also,
that we have an increasingly serious problem with juvenile crime
in our society. What has happened in our society? What has devel-
oped over the last decade or two so that we confront this today as
we do?
Ms. Lisi. Senator Kohl, one of the things I did as a public de-
fender in representing those indigent offenders was to go back and
find out who they were, and I was astounded when I read their
case files which, in our family court, included not only the offenses
for which they were before the court, but also the cases of abuse
which had been brought before the court when they were much,
much younger.
That is when I changed and began to work as an advocate on be-
half of abused and neglected children because I firmly believe that
the only way, or perhaps the most successful way that we can work
with juvenile offenders is to reach them when they are much
131
younger and to reach that family unit before it becomes so dysfunc-
tional that any amount of services will not have success.
Senator KOHL. Are you saying that perhaps, in your opinion, the
major cause of some of these problems in our society is dysfunc-
tional family units, as opposed and contrasted with a generation or
two ago?
Ms. Lisi. I believe so, sir, yes.
Senator Kohl. All right. Ms. Lisi, what would you do when faced
with a first circuit precedent that controlled a matter before you
but with which you personally disagreed?
Ms. Lisi. I think I am bound to set aside any personal feelings
I have about that precedent and I am bound to apply it.
Senator KOHL, I thank you.
Senator Thurmond.
QUESTIONING BY SENATOR THURMOND
Senator Thurmond. Thank you, Mr. Chairman.
I notice from your resume you are with the Rhode Island Su-
preme Court. Now, as I understand it, you are not on the court,
but you are counsel to the court, is that correct?
Ms. Lisi. I am the chief disciplinary counsel for the supreme
court.
Senator Thurmond. You have not been a judge?
Ms. Lisi. No, sir.
Senator Thurmond. You don't anticipate any trouble in the tran-
sition to being a judge, do you?
Ms. Lisi. No, sir, I do not.
Senator Thurmond. The phrase "judicial activism" is often used
to describe the tendency of judges to make decisions on issues that
are not properly within the scope of their authority. What does the
phrase "judicial activism" mean to you?
Ms. Lisi. I think. Senator Thurmond, that the description that
was provided to us in the questionnaire probably most aptly de-
scribes what judicial activism is, and if you have my questionnaire
in front of you, you know that my feeling is that a Federal court
judge is bound by the parameters of article III and the acts of this
Congress.
Senator Thurmond. Sometimes, judges don't agree with the law
in some respects, and you can understand that, and they attempt
to assert their own opinions. How do you feel about that? Congress
is the one that has to change the law and not the judges. Are you
in accord with that?
Ms. Lisi. I am, sir.
Senator Thurmond. Thank you. I wish you well on the bench.
Ms. Lisi. Thank you very much.
Senator KOHL. Thank you, Senator Thurmond. Thank you very
much, Ms. Lisi.
Our final nominee today is Judge Louis Sands. He has been nom-
inated to be district court judge for the Middle District of Georgia.
Judge Sands, if you would raise your right hand, do you swear
that the testimony you shall give in this proceeding shall be the
truth, the whole truth and nothing but the truth, so help you Gk)d?
Judge Sands. I do.
132
Senator KoHL. Thank you, sir. We would be delighted to meet
members of your family if they are with you.
TESTIMONY OF W. LOUIS SANDS, MACON, GA, TO BE U.S.
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF GEORGIA
Judge Sands. Thank you very much, Senator. First of all, I have
with me my wife, Carla Heath Sands, and she is holding our
youngest, Billye Louise Sands, who, for the benefit of the decorum
of this body, it is probably best that she is asleep now. I also have
my daughter, Angela Sands, who will be a student at Georgetown
University Law School later this year, and my son. Walker Louis
Sands; my mother-in-law, Ms. Martha Johnson; my law clerk, Vic-
toria Spear; and also a family friend, Tina Valdecanas.
Thank you very much, Senator.
QUESTIONING BY SENATOR KOHL
Senator KOHL. Well, we thank you all for coming here today. It
is a pleasure to have you.
Judge Sands, in recent years much has been said about Federal
courts' increasing caseloads and the resulting problem of docket
backlog. This backlog has had an adverse effect on the litigants be-
fore the court, who have been forced to suffer at least some, if not
significant delay in the resolution of their claims.
If confirmed, what steps would you take to ensure that your
docket progresses as quickly as possible?
Judge Sands. Well, Senator, that, of course, has been a very
great difficulty not only for the Federal courts, but it has been a
challenge for the State courts, such as the one that I serve on, and
it is a problem we constantly look at. I would expect to do the same
on the Federal bench, if confirmed, as I have tried to do as a State
court judge; that is, to look first to any means that may have al-
ready been set up or may have been suggested by others, but I be-
lieve, for the Federal courts, one has to make good use of the mag-
istrates. In the circuit where I live, we happen to have some very
able magistrates.
Also, there is some discussion about other means, such as arbi-
tration or matters through which litigants can be referred. But I
believe it is a matter that has to be constantly reviewed, any of
those types of suggestions. One of the first things that I would do,
of course, would be to consult with the persons already on our local
bench, but I would be open to any suggestions and again would use
those type of reviews and new techniques that we would come up
with, as we have done on the State bench.
Senator KOHL. All right. I would like to ask you a question I
asked one of the previous nominees, and that is about court secrecy
orders. As you know, there is a growing tendency to allow court se-
crecy orders to stand. I have a bill which would make a judge, by
requirement, not allow any court secrecy agreement that endangers
public health and safety. In other words, if there is a defective
automobile, of which there may be 5 or 10,000 defective auto-
mobiles, and one person has an accident and comes to court and
is prepared to accept a settlement, provided it is kept secret, that
person would not be allowed to do it. The judge would have to rule
that there is a public health and safety issue. There may be 10,000,
133
or 20,000, or 30,000 people who need to know about this defective
automobile, so we cannot allow this judgment to be made secret.
How do you feel about that?
Judge Sands. Well, Senator, I am not specifically familiar with
what you are referring to, the bill that you are referring to, but I
think I understand to what you refer by your description.
Senator KoHL. I tried to explain it, yes.
Judge Sands. Yes; by your description, I do understand.
Senator KOHL. Right.
Judge Sands. First of all, I understand that there is a very dif-
ficult balancing to take place by what you suggest. I believe, of
course, that the courts are public. They are provided for us to have
litigation there so that anyone who wishes to observe may do so.
But I am also aware, on the other hand, that there are certain
matters that are so strictly private, some things as we have had
in the past in criminal cases that are maybe an endangerment. So
I believe, on the other hand, or the other side, there are matters
that might need to be considered closed, possibly.
Senator KoHL. Well, now, there is the opportunity today for a
judge — ^no requirement, but the opportunity today for a judge to set
aside any secret arrangement if, in his judgment or her judgment,
it violates public health and safety. What would you do in the case
of a defective automobile that had caused a death and the plaintiff
was offered a considerable settlement, provided that he was willing
to keep it secret, and he was willing to do it and the defendant
wanted to do it, and you had, as you would have, the opportunity,
but not the requirement, to set that secrecy order aside in the in-
terests of the larger public health and safety of our country? What
would you do?
Judge Sands. Senator, first of all, of course, I would not like to
right here prejudge how I would do it in that particular case, but
I certainly would listen to all of the facts, take into consideration
all of the circumstances on both sides of the case, as I have tried
to do in all cases in the past, and make a decision which I believed
was fair and consistent with the public interest, as well as to abide
fully with whatever law did apply.
Senator KOHL. Finally, do you believe that pro bono work is a
good thing in our society, a necessary thing in our society? Do you
think we ought to make it, second, obligatory on the part of law-
yers, particularly young lawyers as they are coming up in their
communities?
Judge Sands. I think it is very important to our society that law-
yers provide service pro bono. I had the honor and privilege of
being the president of our local bar, and at various times in our
court to this day as new lawyers come aboard, we have a short
ceremony where they come before the bench and I have tried to
emphasize on each of those occasions to the new lawyers how im-
portant it is not only to exercise the privilege of earning a living
by practicing law, but also to return something to the community,
to give something back. So I have tried to do it in that manner.
I believe somehow, if we were to make it absolutely mandatory,
though, I think it would take away the very voluntary nature of
it. I believe it would be something that should definitely be encour-
aged, but I doubt that we would get the full benefit of it if we made
134
it strictly mandatory, but definitely something we should encourage
fully.
Senator KOHL. I thank you very much.
Senator Thurmond.
QUESTIONING BY SENATOR THURMOND
Senator THURMOND. Thank you.
I notice you graduated from the Walter George School of Law in
Macon, GA.
Judge Sands. I did, sir.
Senator Thurmond. I spoke there several years ago. I don't
guess you were a student at that time, were you?
Judge Sands. I was a student there. Senator, from 1971 to 1974.
Senator Thurmond. I have forgotten now what year I spoke
there, but I
Judge Sands. I would have seen you. Senator. I don't believe I
was there at that time because certainly I would have attended.
Senator Thurmond. I was very much impressed with that school,
though. I think it is a good school.
Judge Sands. Thank you very much.
Senator Thurmond. The American Bar Association in consider-
ing judges for the Supreme Court especially consider, first, integ-
rity. Have you ever been arrested for any crime?
Judge Sands. No, I have not. Senator, fortunately.
Senator Thurmond. They consider judicial temperament. You
heard me talk a few moments ago about temperament of a judge,
that he ought to always be courteous and be calm and control him-
self Do you agree with that?
Judge Sands. Yes, I do, Senator. It is very important. I believe,
as you stated, the greater the power a person has, the more hum-
bleness they should show.
Senator Thurmond. That is right. The other thing was profes-
sionalism. I think you have the professionalism here. Having grad-
uated from the Walter F. George School of Law, your education
qualifies you there. You have had considerable experience in var-
ious ways. I notice you were with the Army Reserve in the Signal
Corps.
Judge Sands. Yes, I was.
Senator Thurmond. What was your rank then?
Judge Sands. I was commissioned when I graduated from college
as a second lieutenant and I later attained the rank of first lieuten-
ant when I went into active duty, and at the time I resigned my
commission I was at the rank of captain.
Senator Thurmond. Do you still hold that rank?
Judge Sands. No; I resigned the commission several years ago.
Senator
Senator THURMOND. I see.
Judge Sands [continuing]. After completing my required service
time.
Senator Thurmond. I notice you are a superior court judge in
Georgia.
Judge Sands. That is correct, sir.
135
Senator Thurmond. I was a circuit court judge in South Caro-
lina. I believe that is the same kind of judge, the highest trial court
in the State.
Judge Sands. It is, yes, sir.
Senator Thurmond. We call them circuit courts and you call
them superior courts, I believe. In New York, they call them supe-
rior courts, too.
Now, this will be a trial court you are going on here, the district
court, so it will be similar type work. It will just be in the Federal
court rather than the State court.
Judge Sands. Yes, sir.
Senator Thurmond. So you don't anticipate any trouble there in
making that transition, do you?
Judge Sands. I do not. Senator.
Senator Thurmond. I think you have got a good record. I wish
you well on the bench.
Judge Sands. Thank you very much.
Senator Thurmond. I wanted to mention one more thing to you.
I want to note for the record that you are a member of a club, the
Homosophian Civic Club of Macon.
Judge Sands. Yes, I am, sir.
Senator Thurmond. At least as of 2 months ago, it had never
had a female member in its history, had it?
Judge Sands. That is correct, I believe. Senator.
Senator Thurmond. I just wanted to add that you are hardly
unique in this respect. Many of the Clinton judicial nominees have
had similar club issues, but I must observe that in the days when
the Republicans controlled the Senate and were making nomina-
tions, there would have been an objection to them because they be-
longed to a club that didn't have minorities or didn't have women.
But you are not responsible for that, are you?
Judge Sands. I am not. In fact. Senator, there is a woman mem-
ber of the club and I believe I was one of the persons who encour-
aged that membership.
Senator Thurmond. I think some of the Democrats went too far
in raising a point about these memberships in clubs, so long as
they are fair and just. Anyway, I just wanted to make the point
there that I hope there won't be a double standard when Repub-
licans get back in control and it will be the same standard as the
Democrats use.
Judge Sands. Yes, sir.
Senator Thurmond. Thank you very much.
Senator KOHL. All right. Well, that is not going to be very soon.
[Laughter,]
But I wanted to say this, and I was going to say this before you
made your remarks. I am really honored to be sitting on the same
panel with you, and I think everybody here today feels very special
about having you in our presence.
Senator Thurmond. Thank you. Well, I want to commend you for
presiding over these hearings. You do it quickly, you do it effi-
ciently, and we save a lot of time. Some of these presiding officers
take too long. You do a good job. [Laughter.]
Senator KOHL. Judge Sands?
136
Judge Sands. Senator, not to extend these hearings, but I would
be remiss if I failed to mention a law professor. When Senator
Thurmond mentioned Mercer's Walter F. George School of Law —
I have the great fortune of having a professor here who was for-
merly of that school, Ms. Leah F. Chanin, who is also present, and
I would like for her to stand.
[Ms. Chanin stood.]
Senator Kohl. Thank you very much.
We thank you all for being here today.
Senator Thurmond. I would like to shake hands with you nomi-
nees, if you will come around here in just a minute as I come down
there before we leave.
Senator KOHL. All right. These hearings are closed.
[Whereupon, at 4:03 p.m., the committee was adjourned.]
[Submissions for the record follow:]
137
SUBMISSIONS FOR THE RECORD
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
Carl Edmond Stewart
Address: List current place of residence and office
address(es) .
Home: 6805 Snowmass Street
Shreveport, Louisiana 1'. 119
Office: 430 Fannin Street
Shreveport, Louisiana 71101
Date and place of birth.
January 2, 1950
Shreveport, Louisiana
Marital Status (include maiden name of wife, or husband's
name). List spouse's occupation, employer's name and
business address(es).
Spouse: Jo Ann Southall Stewart
Drug Intervention Coordinator
Caddo Parish School Board
1961 Midway Street
Shreveport, Louisiana 71130-2000
Education: List each college and law school you have
attended, including dates of attendance, degrees received
and dates degrees were granted.
Loyola University School of Law, New Orleans, Louisiana
September 1971 - May 1974
Juris Doctor of Law Degree, 1974
Dillard University, New Orleans, Louisiana
September 1967 - May 1971
Bachelor of Arts Degree in Psychology
Magna Cum Laude, 1971
- CES 1 -
138
5. Rmplovment- Record: List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you
were connected as an officer, director, partner,
proprietor, or employee since graduation from college.
Part-time Initial Action Unit, Nighttime Claims Handler,
Allstate Insurance Company, Metairie, Louisiana,
1972-1974
Trial Defense Counsel and Legal Assistance Attorney,
Office of the Staff Judge Advocate, United States
Army, Fort Sam Houston, Texas, 1974-1977
Associate Attorney, Piper & Brown Law Firm, Shreveport,
Louisiana, October 1977-January 1978
Staff Attorney, Louisiana Attorney General's Office,
Shreveport, Louisiana, January 1978-April 1979
Assistant United States Attorney, Western District of
Louisiana, Shreveport, Louisiana, April 1979-
November 1983
Partner, Stewart & Dixon, A Professional Law Corporation,
November 1983-April 1985
Special Assistant District Attorney and Assistant
Shreveport City Prosecutor, 1983-1985
Adjunct Instructor, Louisiana State University-Shreveport,
College of Business, Department of Management and
Marketing, Spring 1982-Spring 1985
District Judge, First Judicial District Court, Division D,
State of Louisiana, April 1985-February 1991
Judge, Second Circuit Court of Appeal, State of Louisiana,
February 1991-Present
7. Military Service: Have you had any military service? If
so, give particulars, including the dates, branch of
service, rank or rate, serial number and type of discharge
received.
Yes.
October 1974 - October 1977
Captain, U.S. Array Judge Advocate General's Corps
Fort Sam Houston, Texas
437-86-7477
Honorable Discharge
- CES 2 -
139
8. Honors and Awards: List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
Charter Member and Team Leader, Harry V. Booth Chapter,
American Inns of Court, Shreveport, Louisiana
9. Bar Associations; List all bar associations, legal or
judicial-related committees or conferences of which you are
or have been a member and give the titles and dates of any
offices which you have held in such groups. The following
memberships are current:
The American Bar Association and Judicial Administration
Division
The National Bar Association and Judicial Council
The Louisiana State Bar Association
The Harry V. Booth Chapter, American Inns of Court,
Shreveport, Louisiana (Charter Member)
The Black Lawyers Association of Shreveport-Bossier
The Louisiana Conference of Court of Appeal Judges
The Louisiana State Bar Association Bench/Bar Liaison
Committee
10. Other Memberships: List all organizations to which you
belong that are active in lobbying before public bodies.
None.
Please list all other organizations to which you belong.
FORMER BOARD OF DIRECTOR MEMBERSHIPS
Caddo-Bossier Community Council, 1981-1985
Carver Branch YMCA, 1981-1987
HAP House Multi-Disability Work Center, 1981-1987
Boys Club of Shreveport-Bossier, 1982-1985
- CES 3 -
140
Goodwill Industries of Horthwest Louisiana, 1983-1987
Salvation Army Advisory Board, 1983-1986
Northwest Louisiana Sickle Cell Anemia Foundation, 1985-1987
Northwest Louisiana Family Crisis Center, 1986-1987
KDAQ Public Radio Station Community Advisory Board, 1986-1987
Shreveport Opera, 1986-1988
Shreveport-Bossier Metropolitan YMCA, 1985-1989
American Red Cross, 1987-1989
Northwest Louisiana Biomedical Research Foundation
(Charter Officer), 1985-1988
Shreveport Chamber of Commerce, 1985-1988
MEMBERSHIPS IN CIVIC AND COMMUNITY ORGANIZATIONS
Shreveport Chamber of Commerce-Leadership Council, (Chairman,
1985-1986)
National Association for the Advancement of Colored People,
1988-Present
Louisiana State Dniversity-Shreveport Chancellor's Advisory
Board, 1983-1989, (Chairman, 1988-1989)
Ark-La-Tex Ambassadors Club, 1990-Present
Shreveport Chamber of Commerce, Military Affairs Council,
1992-Present
Omega Psi Phi Fraternity, Inc., Rho Omega Chapter, (Basileus,
1983-1985)
Omega Psi Phi Fraternity, Inc., Rho Omega Chapter, Achievement
Week Committee (Chairman, 1992-1994)
Dillard University, Friends of Louisiana Association of
Independent Colleges and Universities, New Orleans,
Louisiana, (Representative, 1988-1989)
Dillard University Alumni Association, New Orleans, Louisiana
(Parliamentarian, 1992)
Loyola University School of Law Visiting Committee,
New Orleans, Louisiana, 1988-1989
YMCA Black Achievers Program Steering Committee, 1990
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141
BOARD MEMBERSHIPS
National Member at Large, Boy Scouts of America, National
Council, 1986-Present
Norwela Council Boy Scouts of America, (Treasurer, 1987-1988,
Vice President for Membership 1990-1993, Council President
1993-Present)
National Member, Urban Field Services Committee, Boy Scouts of
America, Dallas, Texas, 1992-Present
Lighthouse Educational Enrichment Program, 1987-Present
Advisory Board, Links Inc., Project LEAD High Expectations,
1992-Present
Volunteers of America of Northwest Louisiana, 1991-Present
Dovmtown Shreveport Development Corporation, 1990-Present
Grambling State University, Dr. Martin Luther King, Jr.
Criminal Justice Center, Grambling, Louisiana, 1992-Present
Trustee, Centenary College of Louisiana, Shreveport, Louisiana,
1992-Present
Court Admission. List all courts in which you have been
admitted to practice, with dates of admission and lapses if any
such memberships lapsed. Please explain the reason for any
lapse of membership. Give the same information for
administration bodies which require special admission to
practice.
The Supreme Court of the State of Louisiana
October 2, 1974
The United States Court of Military Appeals
December 13, 1974
The United States District Court for the Western District of
Louisiana
January 3, 1978
The United States Fifth Circuit Court of Appeals
February 2, 1979
The United States Supreme Court
June 30, 1980
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142
12. Published Writings: List the titles, publishers, and dates of
books, articles, reports, or other published material you have
written or edited. Please supply one copy of all published
material not readily available to the Committee. Also, please
supply a copy of all speeches by you on issues involving
constitutional law or legal policy. If there were press
reports about the speech, and they are readily available to
you, please supply them.
None.
13. Health: What is the present state of your health? List
the date of your last physical examination.
Good. September 30, 1993.
14. Judicial Office: State (chronologically) any judicial
offices you have held, whether such position was elected
or appointed, and a description of the jurisdiction of
each such court.
Elected District Judge, First Judicial District
Court, Division D, State of Louisiana, April 22,
1985-February 15, 1991. The district court
encompasses Caddo Parish (county) and is a general
jurisdiction court for all civil and criminal cases
except municipal traffic offenses and juvenile cases.
Elected Judge, Second Circuit Court of Appeal, State
of Louisiana, February 15, 1991-Present. The Second
Circuit is one of five intermediate appellate courts
in Louisiana and consists of nine judges. Pursuant to
the Louisiana Constitution, a court of appeal has
appellate jurisdiction of (1) all civil matters,
including direct review of administrative agency
determinations of workers* compensation matters, (2)
all matters appealed from family and juvenile courts,
and (3) all criminal cases triaJ le by a jury except in
capital cases where a penalty of death has actually
been imposed. It has supervisory jurisdiction over
cases which arise within its circuit.
15. Citations : If you are or have been a judge, provide: (1)
citations for the ten most significant opinions you have
written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or
where your judgment was affirmed with significant
criticism of your substantive or procedural rulings; and
(3) citations for significant opinions on federal or state
constitutional issues, together with the citation to
appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, please
provide copies of the opinions.
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143
(1) citations for the ten most significant opinions you
have written:
Ten Most Significant Opinions
1. McCrary v. Park South Properties. Inc.. trial court
opinion attached; affirmed on appeal, 560 So. 2d 38 (La.
App. 2d Cir, 1990), writ denied, 563 So. 2d 1156 (La. 1990).
2. State V. Lobato. 588 So. 2d 1378 (La. App. 2d Cir. 1991),
affirmed, 603 So. 2d 739 (La. 1992).
3. Aldredoe v. Whitney. 591 So. 2d 1201 (La. App. 2d Cir.
1991).
4. Howard v. Howard. 580 So. 2d 696 (La. App. 2d Cir. 1991).
5. Coffin V. The Board of Supervisors of Louisiana State
University Agricultural & Mechanical College. 620 So. 2d
1354 (La. App. 2d Cir. 1993).
6. State V. Gay. 616 So. 2d 1290 (La. App. 2d Cir. 1993).
7. Atkins v. Atkins. 623 So. 2d 239 (La. App. 2d Cir. 1993).
8. In Ret JWR & RKR. 607 So. 2d 634 (La. App. 2d Cir. 1992),
writ denied, 607 So. 2d 571 (La. 1992).
9- First Downtown Development Corp. v. Cimochowski . 613 So. 2d
671 (La. App. 2d Cir. 1993), writ denied, 615 So. 2d 340
(La. 1993).
10. Soderouist v. Kramer. 595 So. 2d 825 (La. App. 2d Cir.
1992).
(2) a short summary of and citations for all appellate
opinions where your decisions were reversed or where your
judgment was affirmed with significant criticism of your
substantive or procedural rulings:
1.
Massev V. G.B. Coolev Hospital For Retarded Citizens. 593
So. 2d 460 (La. App. 2d Cir. 1992), set aside/remanded 616
So. 2d 1242 (La. 1993). Plaintiff petitioned for damages
against his employer alleging that he was wrongfully
terminated and that the employer made defamatory
statements about him during the grievance procedure after
termination. Defendants filed an exception of no cause of
action. The trial court maintained the exception as to
allegations of wrongful termination of employment and
CES 7
144
intentional infliction of emotional distress, but
overruled the exception and found a cause of action for
defamation. The court of appeal affirmed. The Louisiana
Supreme Court set aside the judgments of the lower courts
and remanded the case to the trial court to reconsider the
exception in light of its recent detailed analysis of
whether a court may render a judgment which partially
maintains an exception of no cause of action when the
judgment adjudicates less than all of the claims asserted
against the excepting party.
White V. West Carroll Hospital. 598 So. 2d 1134, (La.
App. 2d Cir. 1992), vacated 613 So. 2d 150 (La. 1992).
Presented with whether the court of appeal may consider a
prior suit which was not introduced into evidence at a
prescription hearing, the appellate court found that the
prior suit was not part of the appellate record and
refused to supplement the record on appeal or to grant
plaintiffs' request to remand the case to the trial court
to supplement the record. The Louisiana Supreme Court
found that the court of appeal was correct in refusing to
supplement the record on appeal, but found it appropriate
to remand the case to the trial court to include evidence
of the prior suit and to reexamine the issue of
prescription in light of the prior suit. Accordingly, the
Louisiana Supreme Court vacated and set aside the judgment
of the court of appeal which affirmed the trial court's
grant of the exception of prescription, and remanded the
case to the trial court for further proceedings.
Taylor v. Giddens. 607 So. 2d 878 (La. App. 2d Cir.
1992), affirmed in part, reversed in part, and remanded,
618 So. 2d 834 (La. 1993). The court of appeal determined
that the language of LSA-R.S. 9:5628, Louisiana's medical
malpractice prescription statute, is unambiguous and
provides no exception for wrongful death and/or survival
actions which arise from medical malpractice. The
Louisiana Supreme Court determined that a wrongful death
action is separate and distinct from a malpractice action
and, thus, is not governed by LSA-R.S. 9:5628. However,
the survival action is controlled by the prescriptive
periods set forth in LSA-R.S. 9:5628. Therefore, the
judgment which sustained the peremptory exceptions of
prescription was affirmed as to the survival action and
reversed as to the wrongful death accion, and the case was
remanded for further proceedings.
CES 8 -
145
4.
State V. Atkins. 607 So. 2d 875 (La. App. 2d Cir.
1992), remanded, 613 So. 2d 164 (La. 1993), on remand 621
So. 2d 656 (La. App. 2d Cir. 1993). The district attorney
obtained bond forfeiture judgments against a bondsman and
seized funds from the bondsman's savings account. The
bondsman petitioned to nullify the bond forfeiture
judgments, asserting that the state failed to give him
proper notices of appearance dates and of the forfeiture
judgments. The trial court found that all notices were
properly sent, and the court of appeal affirmed. The
Louisiana Supreme Court criticized the court of appeal's
reference in dicta to a statute which became effective
after the bond forfeitures occurred, and remanded the case
to the appellate court for reconsideration. On remand,
the court of appeal again affirmed the trial court
judgment.
5.
State V. Otis. 586 So. 2d 595, (La. App. 2d Cir. 1991),
writ granted in part and remanded, 589 So. 2d 487 (La.
1991), on remand, 592 So. 2d 1 (La. App. 2d Cir. 1991).
Defendant appealed his convictions for one count of
manslaughter and two counts of atteirpted manslaughter. He
also appealed his sentences, as an habitual offender, to
25 years hard labor on the manslaughter conviction and 12
1/2 years hard labor on each of the attempted manslaughter
convictions, all of which were to run concurrently. The
court of appeal affirmed defendant's convictions and
sentences. The Louisiana Supreme Court granted writs, in
part, and remanded the case for the
appellate court to reconsider defendant's claim of
ezcessiveness of sentence because defendant was sentenced
as a multiple offender on all three counts, despite the
fact that his convictions were entered on the same day and
involved offenses committed in a single criminal act or
episode. On remand, the court of cppeal determined that
the three convictions must be considered as one
conviction, for the purposes of enhancement under the
habitual offender bill, because they arose from a single
criminal episode. Accordingly, the sentences were vacated
and the case remanded to the trial court for resentencing
on all three convictions, with adjudication and sentencing
as a habitual offender on only one of the convictions.
(3) citations for significant opinions on federal or state
constitutional issues, together with the citation to
appellate court rulings on such opinions.
Hot applicable.
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146
16. Public Office; State (chronologically) any public offices
you have held, other than judicial offices, including the
terms of service and whether such positions were elected or
appointed. State (chronologically) any unsuccessful
candidacies for elective public office.
None.
17. Legal Career;
a. Describe chronologically your la/ practice and experience
after graduation from law school including:
1. whether you served as clerk to a judge, and if so,
the name of the judge, the court, and the dates of
the period you were a clerk;
Ho.
2. whether you practiced alone, and if so, the addresses
and dates;
No.
3. the dates, names and addresses of law firms or
offices, companies or governmental agencies with
which you have been connected, and the nature of your
connection with each;
October 1974-Octob2r 1977
1 served as a Captain in the U.S. Army Judge Advocate
General's Corps immediately after my admission to the
Louisiana Bar. My duty assignment was as a Trial
Defense Attorney and Legal Assistance Officer, Office
of the Staff Judge Advocate, Headquarters, Fort Sam
Houston, Texas.
October 1977-January 1978
Upon discharge from the U.S. Army, I returned home to
Shreveport, Louisiana where I worked as an associate
attorney in the two-person law firm of Piper and
Brown, Attorneys at Law.
January 1978-April 1979
I served as a staff attorney in the Shreveport,
Louisiana office of Louisiana Attorney General William
J. Guste, Jr.
CES 10 -
147
April 1979-Noveniber 1983
U.S. Attorney J. Ransdell Keene hired me as an
Assistant U.S. Attorney for the Western District of
Louisiana initially to work in the civil section. I
remained an Assistant United States Attorney when
Joseph S. Cage, Jr. succeeded Mr. Keene as United
States Attorney for the Western District of Louisiana.
November 1983-April 1985
Upon leaving the U.S. Attorney's Office, I went into
private practice in a two-person law firm named
Stewart and Dixon, A Professional Law Corporation
located in Shreveport, Louisiana. I simultaneously
held a part-time position as an Assistant City
Attorney for the City of Shreveport and a Special
Assistant District Attorney.
b. 1. What has been the general character of your law
practice, dividing it into periods with dates if
its character has changed over the years?
October 1974-October 1977
I was part of a nine-person military law office.
As Trial Defense Attorney, I achieved success on
behalf of my soldier clients in several
courts-martial proceedings. In numerous other
cases, quick and thorough pretrial preparation
enabled me to secure nonjudicial punishments for my
clients in lieu of court-martial. In my capacity
as a Legal Assistance Officer, I organized and
administered the Hospital Legal Assistance Program
at Brooke Army Medical Center, Fort Sam Houston.
As a result of my work as a judge advocate, I
received the Department of the Army, Array
Commendation Medal on October 11, 1977.
October 1977-January 1978
I assisted both Piper and Brown in the preparation
of general civil litigation files. I left the firm
along with several support staff during the law
firm's reduction of overhead costs.
January 1978-April 1979
The Attorney General's Office is located in
Shreveport, Louisiana and was staffed by one
Assistant Attorney General, A. Mills McCawley, a
secretary, and myself. My general duties were to
draft Attorney General opinions, do legal research,
and assist Mr. McCawley in the preparation and
trial of cases within the Shreveport area. I left
the Louisiana Attorney General's Office to accept a
higher paying position.
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148
April 1979-Noveniber 1983
I handled cases under the Federal Tort Claims Act,
as well as other federal statutes and under the
Code of Federal Regulations. In 1980, I moved to
the criminal section and prosecuted cases ranging
from the Migratory Bird Treaty Act to
administrative agency cases for food stamp
violations, social security benefits violations,
etc. Cases I handled from grand jury indictments
to jury trial encompassed vote buying in federal
elections, fraudulent flood claims against the
Federal Emergency Management Agency, embezzlements,
bank robberies, loan sharking, and tax fraud and
criminal civil rights violations. I also
participated in voting rights and school
desegregation cases brought by the Justice
Department.
November 1983-April 1985
My law partner was Edward Dixon. We employed one
secretary and one receptionist. As a small firm,
we handled primarily general civil matters with
little litigation. Both designations enabled me to
prosecute Driving While Intoxicated cases for the
city under state law. Additionally, I prosecuted
misdemeanors and miscellaneous traffic offenses.
Our law firm dissolved and my part-time prosecution
work ended upon my election as a judge on March 30,
1985. I took ray oath of office on April 22, 1985.
Describe your typical former clients, and mention the
areas, if any, in which you have specialized.
See answers to 17b(l) above.
Did you appear in court frequently, occasionally, or
not at all? If the frequency of your appearances in
court varied, describe each such variance, giving dates.
Except during ray private practice years, I appeared in
state and federal courts on i, regular basis.
(See answers to 17b(l) above).
What percentage of these appearances was in:
a. federal courts; 1974-1977; 1979-1983 (100%)
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149
b. state courts of record; 1978; 1984-1985 (99%)
c. other courts.
3. What percentage of your litigation was:
a. civil;
1974-1977 (0%); 1978-1983 (10%); 1984-1985 (1%)
b. criminal.
1974-1977 (100%); 1979-1983 (90%); 1984-1985 (99%)
4. State the number of cases in courts of record you
tried to verdict or judgmen; (rather than settled),
indicating whether you were sole counsel, chief
counsel, or associate counsel.
Military practice - 25 - sole counsel
Private practice - 3 - sole counsel
City and State government - 120 - sole counsel
Federal government practice - 100 - (85%) sole counsel
(15%) associate counsel
5. What percentage of these trials was:
(a) jury; 15%
(b) non-jury. 85%
Litigation; Describe the ten most significant litigated
matters which you personally handled. Give the citations, if
the cases were reported, and the docket number and date if
unreported. Give a capsule summary of the substance of each
case. Identify the party or parties whom you represented;
describe in detail the nature of your participation in the
litigation and the final disposition of the case. Also state
as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or
judges before whom the case was litigated; and
(c) The individual name, addres-.es, and telephone numbers
of co-counsel and of principal counsel for each of the
other parties.
CES 13 -
150
The ten most significant cases I personally litigated all
occurred during my tenure as an Assistant United States
Attorney for the Western District of Louisiana.
1.
United States v. Robert Dwiaht Hance. No. 83-50024-08, Western
District of Louisiana. Jury trial was held in November 1983
before the Honorable Tom Stagg. Counsel for the Defendant:
Mr. Neil Martin Trichel, 610 Marshall Street, Suite 630,
Shreveport, Louisiana 71101, (318) 424-1441
Summary: Filing of fraudulent tax return.
Representing the United States, I handled Mr. Nance's jury
trial as the last of ten cases in which inmates at Wade
Correctional Center located in Homer, Louisiana, had filed
fraudulent federal income tax returns. The inmates filed
returns claiming they had earned wages during the preceding
year and were entitled to receive refunds from the United
States government. Refunds were, in fact, received by the
inmates via the fraudulent use of social security numbers and
addresses. Nine of the ten defendants pled guilty prior to
trial, but Mr. Nance, the purported ringleader, was tried and
convicted by a jury on the indictment charging him with filing
a fraudulent tax return.
My role included the following: Coordinating the field
investigation with the FBI; preparing and examining witnesses
for the grand jury; preparing the grand jury indictment and
presenting it to the grand jury; responding to pre-trial
motions; handling pre-trial proceedings and hearings; preparing
lay and expert witnesses for trial; conducting the trial from
opening argument, through the return of the jury verdict, to
sentencing.
Significance:
The case was significant because it represented the
curtailment of a substantial scheme of defrauding money from
the government, not only by persons who had not earned any
income but by inmates who were incarcerated on other charges.
These fraudulent returns and the prosecution impacted greatly
on the finances of the United States. Mr. Nance was convicted
and sentenced to a period of hard labor to run consecutively
with the time he was serving in the state penitentiary.
United States v. Wavmon Fortenberry. No. 82-30017, Western
District of Louisiana, Monroe Division. Jury trial was held
during 1982-1983 before the Honora ale Nauman S. Scott, then
Chief Judge of the Western District of Louisiana. Counsel for
the Defendant: Mr. Robert McLeod, 1900 North 18th Street,
Suite 610, Monroe, Louisiana 71207, (318) 325-7000.
Co-Counsel for the United States, Department of Justice
Attorneys Ross Connealy and Criselda Ortiz.
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151
Summary: Criminal Civil Rights Violation.
I represented the United States as co-counsel in this case
against Mr. Fortenberry, who was Warden of the East Carroll
Parish Prison. The factual basis for the criminal civil rights
violation was that two young black men, inmates at the prison,
were left in a metal box over an extended period of time and,
due to extreme heat and dehydration, died in the metal box.
Both the victims in the case were under 20 years of age. After
a multi-day trial, the jury acquitted the defendant.
As co-counsel, I served as local contact for the
Washington, D.C. Justice Department lead counsel. I examined
the grand jury witnesses and assisted in preparing the grand
jury indictment. During the trial, I prepared and examined Dr.
George W. McCormick, III, a forensic pathologist, who testified
as an expert witness.
Significance;
The case is significant because of the extreme neglect
which led to deaths of two young men while in the custody of a
state official. The impact of the trial on the community, as
well as the deterrent effect on others responsible for the care
of prisoners, was significant. For my participation in this
trial, I received a letter of commendation from the United
States Department of Justice.
3.
United States v. Melvin Banks a/k/a Niohttrain. No.
82-50031-01, Western District of Louisiana, Shreveport
Division. Jury trial was held during 1982-1983 before the
Honorable Henry A. Politz, now Chief Judge of the Fifth
Circuit, United States Court of Appeals, who was then sitting
as a District Court Judge. Counsel for Defendant: Mr. Richard
Schmidt, appointed counsel, then of the law firm, Lunn, Irion,
Smitherroan, et al. Attorney Schmidt is now a United States
Bankruptcy Judge, 501 Government Plaza Building, 400 Mann
Street, Corpus Cristi, Texas 78401, (501) 888-3482.
Summary: Federal Loan Sharking.
I represented the United States in its prosecution of Mr.
Banks under a federal loan sharking statute for his heinous and
prolonged activities of exacting exorbitant interest rates
under the threat and perpetration of violence upon persons who
had borrowed small amounts of money. The victims were all
members of Ledbetter Heights, a low income neighborhood in the
City of Shreveport. The trial of Mr. Banks occurred after
taking a number of guilty pleas of r.everal persons involved in
the same and similar conduct end, after extensive FBI
surveillance and investigation. The jury convicted Mr. Banks
and he was sentenced to a jail term.
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152
My role included the following: Coordinating surveillance
operations with the FBI; preparing and examining witnesses for
the grand jury; preparing the grand jury indictment and
presenting it to the grand jury; responding to pre-trial
motions; handling pre-trial proceedings and hearings; preparing
lay and expert witnesses for trial; conducting the trial from
opening argument, through the return of the jury verdict, to
sentencing.
Significance:
The incarceration of Mr. Banks removed a substantial threat
to the community, particularly in the lives of the elderly and
poor people who he intimidated.
United States v. E.B. Malmav, No. 80-50031, Western District of
Louisiana, United States v. Malmav. (on appeal) 671 F.2d 869
(5th Cir. 1982).
and
5.
United States v. Alfice Brumlev. No. 80-50029, Western District
of Louisiana. Litigated during 1980-1981 before the Honorable
Tom Stagg. Counsel for both Defendants: Mr. John R. Nartzell,
338 Lafayette Street, New Orleans, Louisiana 70130, (504)
581-9065. Co-Counsel for the United States: Mr. A. M. Stroud,
then First Assistant United States Attorney, who is now with
the law firm Blanchard, Walker, O'Quin & Roberts, Post Office
Drawer 1126, Shreveport, Louisiana 71163, (318) 221-6858.
Summary: Payment of voters in an election.
Mr. Malmay was an elected school board member, and Mr.
Brumley was an incumbent sheriff, in Sabine Parish of
Louisiana. Each was indicted for paying voters in an election
in which federal candidates were on the ballot. In connection
with the public integrity section o:'! the Justice Department, I
participated as co-counsel in the prosecutions of Mr. Malmay
and Mr. Brumley. Mr. Brumley plead guilty to a misdemeanor and
is still the sheriff for Sabine Parish. Due to pretrial
publicity in the Sabine Parish area, Mr. Malmay's trial was
held in Shreveport. Mr. Malmay was convicted by a jury but,
due to his age and station in the community, he was not given a
jail term.
My participation as co-counsel included extensive
coordination of pre-indictment investigation with the FBI and
review of FBI 302 reports. I accompanied FBI agents during
witness interrogation. I examined grand jury witnesses and
assisted lead counsel, Mr. Stroud, in all other pre-trial
proceedings. I examined witnesses aid did the closing argument
during the trial of Mr. Malmay.
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153
Significance;
These convictions were the culmination of an extensive
investigation by the FBI which had resulted in a number of
guilty pleas of lower level haulers and payers. The conviction
of Mr. Malmay served as a great deterrent to vote buying and
other voter irregularities in the Sabine Parish area and other
parts of the state. The conviction of a higher-up official
served to bestow a confidence in the electoral system in the
area impacted.
6.
United States v. Charles Bentlev. Nos. 83-30008 and 85-50040,
Western District of Louisiana, Alexandria Division. Litigated
before the Honorable Nauman S. Scott, then Chief Judge of the
Western District of Louisiana. Counsel for the Defendant: Mr.
Ralph Capitelli, 600 Julia Street, New Orleans, Louisiana
70130, (504) 582-2425.
Summary: Embezzlement.
Representing the United States, I handled Mr. Bentley's
prosecution and guilty plea after an extensive grand jury
investigation which showed that he had embezzled more than $6
million from the Bastrop Federal Savings and Loan Association
where he was an officer and employee. Mr. Bentley had an
excessive gambling habit which was the cause of his extensive
thefts from the Savings and Loan Association. Because he was a
relative of one of the senior employees, he was able to conceal
this embezzlement for an extended period of time. Mr. Bentley
pled guilty.
My role included coordinating the field investigation with
the FBI and examining numerous financial records and gambling
paraphernalia. I presented evidence to the grand jury which
culminated in Mr. Bentley's indictment. I represented the
government in plea negotiations which resulted in Mr. Bentley's
guilty plea to five counts of embezzlement, each count in the
amount of approximately $1 million.
Significance;
One of the larger embezzlement cases prosecuted in
Louisiana at that time, this $6 million embezzlement served to
cause the ultimate demise of the Bastrop Federal Savings and
Loan Association.
United States v. Hugh Lemoine. No. 81-50011, Western District
of Louisiana, Shreveport Division. Jury trial was held during
1981-1982 before the Honorable Tom Stagg. Counsel for
Defendant: Mr. H. F. Sockrider, Jr., 327 Crockett Street,
Shreveport, Louisiana 71101, (318) Z21-5503.
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154
Summary: Receipt and sale of stolen merchandise.
Mr. Lemoine was a Shreveport policeman who was charged by
indictment with knowingly receiving and reselling major
appliances which he knew, or should have knotm, had been
highjacked from an eighteen-wheeler truck during the interstate
transport of the merchandise. After multiple days of trial,
the jury acquitted Mr. Lemoine.
My role included the following: Coordinating the field
investigation with the FBI; preparing and examining witnesses
for the grand jury; preparing the grand jury indictment and
presenting it to the grand jury; responding to pre-trial
motions; handling pre-trial proceedings and hearings; preparing
lay and expert witnesses for trial; conducting the trial from
opening argument, through the return of the jury verdict.
Significance:
Notwithstanding the acquittal, the case culminated an
extensive investigation involving receipt and sale of stolen
merchandise that had been located in interstate commerce. The
guilty pleas which preceded the Lemoine trial, as well as the
trial itself, served to deter other highjacking and receipt and
purchase of stolen items from Shreveport area truck stops and
other locations.
8.
United States v. Warren J. Lacomb. Ho. 83-10011-01, Western
District of Louisiana. Jury trial was held during 1983-1984
before the Honorable Rauman S. Scott. Counsel for the
Defendant: Mr. Michael Johnson, now a judge on the 12th
Judicial District Court, Avoyelles Parish Courthouse,
Marksville, Louisiana 71351, (318) 253-9418
and
9.
United States v. Mitchell Laprairie. Ho. 82-10024-01, Western
District of Louisiana. Counsel for Defendant: J. Michael
Small, One Center Court, Suite 201, Alexandria, Louisiana
71309, (318) 487-8963.
Summary: Fraudulent flood claims.
Lacomb and Laprairie were companion cases to Verna
Disselle. No. 83-10012-01, Louis Foster. Ho. 84-10016-01, and
Thomas Simpson. I represented the United States in these cases
in which, after an extensive grand jury investigation, each
defendant was indicted for filing fraudulent flood claims with
the Federal Emergency Management Agency. A scheme was
protracted with Thomas Simpson, the agent for General
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155
Adjustment Bureau which handled £lood claims as a lower level
adjuster for FEMA. Lacomb was the owner of several properties
regarding which he submitted claims. Lacomb also consorted
with other defendants to file claims on his behalf in an effort
to recover money from the United States Government on
properties which either (1) were not owned by him, or (2) were
owned by him but which had not been affected by any flood.
In developing and prosecuting these cases, I accompanied
the lead FBI investigator to view the situs of many of the
fraudulent claims. I presented to the grand jury the evidence
which had been developed by the FBI, prepared indictments, and
negotiated plea agreements. I coordinated with the FBI a
method by which guilty pleas were obtained from lower-level
participants in exchange for information and testimony about
higher-level participants. The procedure used extended the
investigation but resulted in the indictment of Lacomb, who had
submitted a large number of fraudulent claims.
Significance:
The impact of these cases is that, cumulatively, they
involved a loss to the United States Government of over
$169,000.
10.
Beryl N. Jpngg v. Caddo Parish School Board. Civil No.
11055-S. Western District of Louisiana. Litigated in 1981
before United States District Judge Tom Stagg in the Shreveport
Division. Counsel for Caddo Parish School Board: Mr. Fred
Sutherland, 400 Travis Street, 1103 Beck Building, Shreveport,
Louisiana 71101, (318) 226-9001. Co-Counsel for Jones: then
United States Attorney J. Ransdell Keene, whose current address
is Post Office Box 3097 1040 Kings Highway, Shreveport,
Louisiana 71133-3097 (318) 221-5770; then First Assistant
United States Attorney Frances O. An.en, who now resides at 754
Dudley Drive, Shreveport, Louisiana 71104, (318) 868-9953; and
Justice Department Attorneys Nathaniel Douglas and Brian
Hefernan.
Summary: Desegregation.
Jones is the primary school desegregation case in Caddo
Parish. When first filed in the 1960 's, it challenged the
separate but unequal school system in the parish. Vestiges of
the case remained in 1981 when the Caddo Parish School System
sought unitary status. As an Assistant United States Attorney,
I worked with the above referenced co-counsel in fashioning a
Consent Decree.
My participation in this case included numerous discussions
with government expert witnesses, school board members, and
others, as well as negotiations wi-rh counsel for the school
board. I collaborated with co-counr,el and opposing counsel to
assess the impact, upon various segments of the community, of
both the proposed and final language of the Consent Decree
- CES 19 -
156
The negotiations are described as follows in Jones v . Caddo
Parish School Board. 735 F.2d 923, 931 (5th Cir. 1984):
[T]he United States and the Board entered into
widely publicized settlement negotiations lasting
nearly a year, which led up to the execution of the
Consent Decree in Nay 1981. Numerous public meetings
(twenty-eight are listed in the papers filed by the
Board below) were held throughout the community,
principally in February, March and April 1981, to
inform the citizens about various desegregation
approaches and to obtain community input.
Representatives of the Justice Department met with
black civic leaders, and also received input form
black citizen and parent groups.
Significance:
The Consent Decree is signed by me as one of the
attorneys and still governs the Caddo Parish School system
today.
19. Legal Activities; Describe the most significant legal
activities you have pursued, including significant
litigation which did not progress to trial or legal matters
that did not involve litigation. Describe the nature of
your participation in this question, please omit any
information protected by the attorney-client privilege
(unless the privilege has been waived.)
In addition to the cases previously described in
Number 18 above in which I was involved in the litigation,
cases which I presided over as a trial judge stand out in
my career. The range of judicial decisions I have made
include issues of child custody, paternity, probate and
successions, trusts, personal injury, worker's
compensation, personal and commercial property interests,
business organization disputes, misdemeanors to murders,
rapes, robberies, and drug offense. The close contact I
have had with litigants, lawyers, jurors and fellow judges
has made ray respect for the value of the rule of law
greater than ever. Having served as a trial judge, I feel
well equipped to handle appellate review on a high volume
basis.
- CES 20
157
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated
receipts from deferred income arrangements, stock,
options, uncompleted contracts and other future benefits
which you expect to derive from previous business
relationships, professional services, firm memberships,
former employers, clients, or customers. Please describe
the arrangements you have made to be compensated in the
future for any financial or business interest.
None.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the
categories of litigation and financial arrangements that
are likely to present potential conf licts-of-interest
during your initial service in the position to which you
have been nominated.
I am unaware of any conflicts of interest that might
occur based on any past or present financial arrangements
I have. I also do not know of any types of litigation
which might cause me to have a conflict of interest.
Nonetheless, I have read the Code of Conduct for United
States Judges and fully intend to follow it whenever I
should encounter a potential or actual conflict of
interest. I would recuse myself from considering any case
in which a conflict of interest exists. '
Do you have any plans, commitments, or agreements to
pursue outside employment, with or without compensation,
during your service with the court? If so, explain.
Ho.
List sources and amounts of all income received during the
calendar year preceding your nomination and for the
current calendar year, including all salaries, fees,
dividends, interest, gifts, rents, royalties, patents,
honoraria, and other items exceeding $500 or more (If you
prefer to do so, copies of the financial disclosure
report, required by the Ethics in Government Act of 1978,
may be substituted here.)
See Attached Form AO-IO Financial Disclosure Report.
- CES 21 -
158
FINANCIAL DISCLOSURE REPORT
toport Raqolfvd by tbm ItUea
R«fO£V jure of 1989. Pub. L. Ho.
101-194. Novaabu 10. 1989
(S U.S.C.il. Jlpp. 6, SSlOl-112)
1. PvrsoD Raportlog (L4at oana. first, alddlc InttlaT )
Stewart, Carl E.
2. Court or OrganlzAtloo
U.S. Court of Appeals
Fifth Circuit
1. D«ta of Rftport
January 20 ,
99
4. Tltla (imicla XIX judges indlCAt* sctlva or
■•nlor Bt«tua; Kaglstrat* judgaa Indicata
full- or pATX-tloa)
Circuit Judge (full-time)
i. Raport Xypa (chack approprlata cypa)
,, Hoalnatlon, Data
X Initial
Annual
Final
6. Xaportlag Parlod
January 1, 1993 to
December 31, 199:
7. Chmmbmrm or otflc* Aoarmmm
U.S. Courthouse
600 Camp Street
New Orleans, Louisiana 70130
8. oa tbo baala oC tbo laforvatloo conralnod la tbla Msport. It
la. lA By opinion, in coapllanca wltb appllcabla l«w« and
cafolntiona
llaviawlag Offlc«r aignator*
IMPORTANT NOTES: The inimictions accompanying this form must be followed. Complete all parts,
cfaeddng the NONE box for each section where you have no reportable information. Sign on last poge.
1. POSITIONS. (Reporting individual only, see pp. 7-8 of Instructions.)
POSITION NAME OF ORGANIZATION/ENTITY
D
NONE (Ho raporcnbla positional
Director
Trustee
Volunteers of America of Northwest Louisiana
Norwela Council , Boy Scouts of America
Centenary College, Shreveport, Louisiana
II. AGREEMENTS. (Reporting individual only, see p. 8-9 of Instructions.)
DATE PARTIES AND TERMS
NONE (Ho Tsportabls agn
III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 9-12 of Instructions.)
n
DATE
(Honoraria only)
SOURCE AND TYPE
NONE (Mo r«portabla noo-lnvnTMiit In
T.niii<;iana fSrafP TuHi ri ary CTiidi ri a1 Salary')
(S)Caddo Parish School Board (Salary)
r<;^c;rhiimpprr Mpdiral Cpnl-pr CSalaryl
GROSS INCOME
(yours, act spouse's)
S «q nnn
$
$
$
s
159
FINANCIAL DISCLOSURE REPORT (cont'd)
Has* at PersoQ Reporting
Carl E. Stewart
DaXm of Raport
January 20 . L9
"■ "^^a^i'",?^"^"'^^ ^"^ °'"'S - iraispottation, lodging, food, entertainment
SOURCE DESCRIPTION
I I NONE (Ho ■neh MpoTMBlo roJjnbiir««iD«it. or glfti)
E^iEtlE^: KXFMPT
V. OTHER GIFTS. (Indudes those to spouse and dependent children; use the i>arenthetlcals V<n' .nd -mrr f„
rndtat^other g^s received by spouse and STpenden. cS^i^^^^^^!^'^J% Tlns^So^
n
r InslmctloQa.)
SOURCE DESCRIPTION V/iLVE
NONE (No ■ucJl raportAblo gl£t«)
1
EXEMPT EXEMPT
s.
s.
s
^'- ^'^g'liili^,. ^"^f.%^^L'^Tsrtr''J^^^^'-„^^^^^^
£s» ^^-^ «C;^Slf S35SiE
or reporting
Instructions.)
"^™"^°'* DESCRIPTION VALUE CODE*
A I NONE (Do zapoRabl* llaDlllUu)
s
"^°»"= r.|Ho?2S.°L^n;o,oco y.llliZ.'Vll'.lllo.o J : S^;°?i^%l?SSo?SSo « -'-.""«. -.00.
160
FINANCIAL DISCLOSURE REPORT (cont'd)
HonM of Par«on Raporrlng
Carl E. Stewart
Data oC Repozt
January 20, 1 19^
VII. INVESTMENTS and TRUSTS - income, value, transactions, (includes those of spouse
and dependent children; see pp. 18-27 of Instructions.)
Daaorlptioa oC Aaa«t«
(locludLsg xnmt uammXMi
Zndlo«t«, wbarw appllcahla, ownar of
tba #»aat by uaijig cEa parancbatJ.cal
durlna
c.
9roas valaa
at and of
raportlng
period
D.
Tranaaotlona during repoRlsg p«rlod
inn indlviaual and spcrasa, "(S) for
MDsrata ownarstiXp by spouaa. *<DC}"
Cor pwnarmAXp by gapawlant ealld.
?1mo» "<Z)* atzmr aaeh mmmmt.
mxmmpz cxoB prior dlacioaura.
(1)
(2)
^:
raac or
Inc.r
(1)
(2)
Valua
MatJtod«
coda'
^
It not axaapt. Croa dlscloaura |
bvy^aaU.,
nargar,
radasp-
tlon)
Hontfa'
Day
(3)
Valua,
Coda'
(«)
Gain,
coda'
C»-a)
IdaoUiy o£
bnyar/aallar
(It prlvata
traasaouon)
NONE (Ro rapoTUbla
y Inrn— , aasaca, or
A tranaactlona )
1
2
3
<
5
6
■)
•
9
10
11
12
13
14
15
1(
17
la
19
20
I iBooiM/Caln Codaai »-«l,000 or lasa B-Jl,00l to S2,500 C-S2,501 to 5,000 0-S5,001 to $15,000
fsaa col. Bl I D») E-S15,001 to SSO.OOO F-J50,001 to SIOO.OOO C-S100,0Ol to SI, 000, 000 B-Mora tn.o $1,000,000
(Saa Col CI t D31 R-$250,D01 to $500,000 O-S500,00J to 51,000,000 P-Mora than SI. 000, 000
1 Valoa Hatnod Codaat Q-Appraiaal R-Coat (real astato only) S-Ataaaaaant T-Caab/Harkat
(Saa col. C2) U-BooK Valua V-otBar w-Batljutad
161
FINANCIAL DISCLOSURE REPORT (conl'd)
NuM Of Parson R«porxlog
Carl E. Stewart
Data of Rapozt
January 20 , ! 99
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (indicate pait of Report.)
IX. CERTIFICATION.
Id compliance with the provisions of 28 U.S.C § 4SS and of Advisoiy Opinion No. 57 of the Advisory Committee on
Judicial Activities, and to the best of my knowledge at the time after reasonable inquiiy, I did not perform any adjudicatoiy
function in any litigation during the period covered by this report in which I, my spouse, or my minor or dependent children
had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I certify that all information given above (including information pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my Imowledge and belief, and that any information not reported was
withheld because it met applicable statutory provisions permitting non-disclosure.
1 funher certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.CA. app. 7, § SOI et seq., S U.S.C S 7353 and Judicial Conference
regulations.
Signature
Dale.Tamiarv 20. 1994
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FTLE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA. APP. 6, § 1(M, AND 18 U.S.C § lOOL)
FILING INSTRUCTIONS:
Mafl
signed
original
and 3 additional
copies to:
Judicial Ethics Committee
Administrative Office of the
United Slates Courts
Washington, DC 20544
162
5. Please complete the attached financial net worth statement
in detail (Add schedules as called for).
See Attached.
6. Have you ever held a position or played a role in a
political campaign? If so, please identify the
particulars of the campaign, including the candidate,
dates of the campaign, your title and responsibilities.
None other than my own election campaign for Louisiana
State District Judge on March 30, 1985 in Shreveport,
Louisiana.
- CES 22
163
NET WORTH
February 23. 1994
Judge Carl E. Stewart
Provide t complete, current nnancial net wonh jutement which itcmiMJ In detiil
til aisf ti (Including bink iccounti. real esuie, jecuriticj, trusts, investments, and other financiil
holdmgs) all liabilities (bdudbig debts, mortgages, loans, and other financial obligations) of
youn^Ii". your spouse, and other Immediate member? of your householi
ASSETS
UABn-rnES
Cub on kuid uii in btnki
'5,200.
00
Sole* peyible to b«nl3-«»ai'e<l
1
U.S. Covuniscnt Mcurida-tdd
tchedul*
Nolu ptytbli <0 btnb-uniccu.n^
Lirttd >ccuntiu-*dd schrduli
NoUi ptytbU 10 relilivei
UnlJilsd Kcwit!ci"wU ichxljl*
Nolei ptyibk Id olbert
Account! ind noui rtotlviblc
AecounU tod billt dua
Dm« frDin rclilires uid friuidi
Unpaid Income tix
Put from otheri
Other onpeid in ind inttrtd
1
Doubtful
Rfil tiuu na(t{ite( ptytblc-idd
•che^Iult
145
000.
Ot
ReU e4Ulc awned.-tdd schedule
165,00
).0(
Chuiel owiimet and other lieni piy.
abU
2
766.
Ot
Xul ciLile morHiiej rectivtble
Oiher debu-ileiniu.'
Autot »«d other penoo*: property
55,00
).0(
installment accounts/
32
.0 0^
0(
Cuh V4]ue-U|( insu.'uic«
6,08
L.0(
credit cards
Ovher uitu-iuraiie:
1
Toro Hills time share
7.50
0.0
1
/
1
JoAnn Stewart - IRA
10,000
.00
1
Certificate of Deposit
5 ,000
.00
Total liabOitiM
179,
^66. DO
La. State Emo'ee Retiremt.
7 1 ,'iy7
.00
NetWoitt
145, [512. [)0
ToUl Aiuls $ -
25,27?
.00
Total liabnUu and rtel erarlh
325,
278. bo
CO.NILVGEM llABiLllliLa
CENXRAL INFORMATION
As eodorter, eomaier or |utrulor
Art any aueu ple<i(c4? (Add ichai.
vie.)
NO
On leuei oi oontjicti
Are you defcadant ir. ar,y (uiu or le(al
tciioniT
NO
Legd Otlnu
Have you er»er takao bankrwpte) J
NO
Pioviuon for FcdertJ Incomt Tax
Other ipefUJ debt
164
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls
for "every lawyer, regardless of professional prominence
or professional workload, to find some time to participate
in serving the disadvantage." Describe what you have done
to fulfill these responsibilities, listing specific
instances and the amount of time devcted to each.
Since 1985, I have served on panels for the Hugh
O'Brien Youth Leadership Program, Mock Trial judge.
People's Law School participant, and Shreveport Bar
Association Pro Bono Project speaker. As a trial judge, I
regularly invited school kids to visit my courtroom in
order to give them a real impression of the impact of the
law in our society. During breaks, I have introduced
court staff to kids and answered questions for them. As
an appellate judge, I have hosted at risk black kids from
an after school program to my chambers and the courtroom.
In addition to my youth services oriented board
memberships, I make 10-15 school appearances per year for
speeches, panels, etc. I devote an average of two hours
per work day to youth and disadvantaged youth programs and
activities.
The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a
judge to hold membership in any organization that
invidiously discriminates on the basis of race, sex, or
religion. Do you currently belong, or have you belonged,
to any organization which discriminates--through either
formal membership requirements or the practical
implementation of membership policies? If so, list, with
dates of membership. What you have done to try to change
these policies?
None.
3. Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal
courts? NO. If so, did it recommend your nomination?
Please describe your experience ir the entire judicial
selection process, from beginning zo end (including the
circumstances which led to your nomination and interviews
in which you participated) .
I was recommended for nomination to the federal court
by Louisiana's two U.S. Senators J. Bennett Johnston
and John Breaux. Thereafter, I was called by White
House Counsel Bernard Nussbaum about their
recommendation and I affirmatively acknowledged my
- CES 23 -
165
desire to serve on the federal bench. I submitted
answers to a set of questionnaires provided by the
White House Counsel's Office and was later interviewed
in Shreveport by the FBI and a representative of the
American Bar Association Standing Committee on the
Federal Judiciary. I was interviewed in Washington,
D.C. by the White House Counsel and members of his
staff. On January 27, 1994, the White House Counsel
notified me by telephone that President Clinton had
nominated me to serve as a judge on the U.S. Fifth
Circuit Court of Appeals.
Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case,
legal issue or question in a manner that could reasonably
be interpreted as asking how you would rule on such case,
issue, or question? If so, please explain fully.
No.
Please discuss your views on the following criticism
involving "judicial activism."
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism
that alleges that the judicial branch has usurped many of
the prerogatives of other branches and levels of
government.
Some of the characteristics of this "judicial activism"
have been said to include"
a. A tendency by the judiciary toward problem-
solution rather than grievance-resolution;
b. A tendency by the judiciary to employ the
individual plaintiff as a vehicle for the
imposition of far-reaching orders extending to
broad classes of individuals,
c. A tendency by the judiciary to impose broad,
affirmative duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
- CES 24 -
166
e. A tendency by the judiciary to impose itself upon
other institutions in the manner of an
administrator with continuing oversight
responsibilities.
I believe in and respect the equality of the three
branches of government created by the U.S.
Constitution. As a separate branch of government, the
federal judiciary's powers should be exercised
sparingly and in a manner which resolves the
litigation along the narrowest basis possible. Where
issues before a court can more appropriately be
resolved pursuant to the powers of the legislative or
executive branches, the court should defer to the
other branches.
I believe that the doctrine of judicial precedent
plays a valuable role in maintaining stability in the
law. I am familiar with the use of judicial precedent
as part of the judicial decision making process. I
have found it to play an important part in helping a
court render sound legal rulings on the issues
presented by the litigants.
CES 25 -
167
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
James Gray Carr
2. Address: List current place of residence and office
address (es) .
Residence: 4525 Wedgewood Court
Toledo, Ohio 43615
Office: 318 United States Courthouse
1716 Spielbusch Avenue
Toledo, Ohio 43624
3. a. Date and place of birth
November 14, 1940 Boston, Massachusetts
4. Marital Status (include maiden name of wife, or husband's
name). List spouse's occupation, employer's name and business
address (es) .
Eileen M. Carr (Glynn)
Associate Professor
College of Education
University of Toledo
2801 West Bancroft Street
Toledo, Ohio 43606
5. Education; List each college and law school you have attended,
including dates of attendance, degrees received, and dates
degrees were granted.
Kenyon College 1958-62 A.B. 1962
Univ. of Freiburg 1962-63 no degree
Harvard Law School 1963-66 LL.B. 1966
6. Employment Record: List (by year) all business or professional
corporations, companies, firms, or other enterprises,
partnerships, institutions and organizations, nonprofit and
otherwise, including firms, with which you were connected as
an officer, director, partner, proprietor, or employee since
graduation from college.
168
Gardner, Carton, Douglas,
Chilgren & Waud
[now: Gardner, Carton & Douglas]
321 N. Clark St.
Chicago, Illinois 60610
Gardner, Carton, Douglas,
Chilgren & Waud
[Gardner, Carton & Douglas]
321 N. Clark St.
Chicago, Illinois 60610
Cook County Legal Assistance Fndtn 1968-70
1146 Westgate St. Staff Attorney
Oak Park, Illinois 60301
Summer, 1965
Summer Associate
1966-68
Associate
Chicago-Kent IIT College of Law
3300 South Federal St.
Chicago, Illinois 60609
Loyola University College of Law
820 North Michigan Ave.
Chicago, Illinois 60611
Fall, 1969
Adjunct Professor
Spring, 1970
Adjunct Professor
College of Law
University of Toledo
2801 W. Bancroft St.
Toledo, Ohio 43606
1970-79
Professor
Lucas County Prosecutor
Lucas County Courthouse
Toledo, Ohio 43624
Child Abuse Prevention Center
[now: Family & Child Abuse
Prevention Center]
One Stranahan Square
Toledo, Ohio 43606
1972-73
Part-time Asst . Prosecutor
1974-79
Board Member
United States Courts
318 U.S. Courthouse
1716 Spielbusch Ave.
Toledo, Ohio 43624
1979 to date
United States Magistrate
Pretrial Services Resource Center
1325 G Street, N.W.
Washington D.C. 20005
1991 to date
Board Member
169
Military Service; Have you had any military service? If so,
give particulars, including the dates, branch of service, rank
or rate, serial nxunber and type of discharge received.
None
Honors and Awards; List any scholarships, fellowships,
honorary degrees, and honorary society meiaberships that you
believe would be of interest to the Conunittee.
Baker Scholarship Kenyon College
Phi Beta Kappa Kenyon College
German Academic Exchange Fellow- Univ. of Freiburg
ship and Fulbright Travel Grant Freiburg, Germany
1962-63 ■
Fulbright Research Fellowship Law Faculty
University of Bonn
Bonn, Germany
1977-78
Bar Associations; List all bar associations, legal or
judicial-related committees or conferences of which you are or
have been a member and give the titles and dates of any
offices which you have held in such groups.
a. Bar Associations
Chicago Bar Association 1966-70
Chicago Council of Lawyers 1967-70
Ohio State Bar Association mid 1970s
American Bar Association mid 1970s, 1993 to date
Federal Bar Association mid 1970s
Toledo Bar Association 1971 to date
b. Judicial-Related Committees
Committee on Rules of Criminal Procedure and Evidence
American Bar Association 1994
Committee on Criminal Law
Judicial Conference of the United States 1986-92
170
U.S. District Court, N.D. Ohio
Differentiated Case Management Oversight Coram. 1991 to date
Administrative Office of the United States Courts
Probation and Pretrial Services Case Management and
Statistics Umbrella Group 1993
Ohio Supreme Court, Civil Rules Subcommittee
on Juvenile Rules (Co-reporter) 1971-72
10. Other Memberships ; List all organizations to which you belong
that are active in lobbying before public bodies. Please list
all other organizations to which you belong.
a. Lobbying Organizations: none.
b. Other organizations:
Pretrial Services Resource Center 1991 to date
Board Member
Toledo, Lake Erie & Western Railway 1993 to date
& Museum
Maritime Heritage Society 1988 to date
Great Lakes Historical Society 1979 to date
Maumee Valley Historical Society 1983 to date
Toledo Museum of Art 1978 to date
WGTE-TV/FM 1979 to date
History Group 1986 to date
Notre Dame Academy Booster Club 1993 to date
11. Court Admission; List all courts in which you have been
admitted to practice, with dates of admission and lapses if
any such memberships lapsed. Please explain the reason for any
lapse of membership. Give the same information for
administrative bodies which require special admission to
practice.
Illinois Supreme Court November 29, 1966
U.S. District Court
Northern District of Illinois December 16, 1966
171
U.S. District Court
Northern District of Ohio July 13, 1970
Ohio Supreme Court March 6, 1972
United States Supreme Court June 23, 1980
12. Published Writings; List the titles, publishers, and dates of
books, articles, reports, or other published material you have
written or edited. Please supply one copy of all published
material not readily available to the Committee. Also, please
supply a copy of all speeches by you on issues involving
constitutional law or legal policy. If there were press
reports about the speech, and they are readily available to
you, please supply them.
a . Books
Criminal Procedure Handbook Clark Boardman Callahan
(Annual book-length survey of
all reported federal criminal
cases) 1984 - 1993
The Law of Electronic Surveillance Clark Boardman Callahan
(treatise) 1976 (1st ed.)
1985 (2ded., supplemented
semi-annually)
2 Anderson's Ohio Family Law: Juvenile
Law & Procedure Anderson Pub. Co.
(treatise; co-author) 1975 (1st ed.)
1989 (2ded., supplemented
annually)
Juvenile Law and Its Processes Michie Bobbs Merrill
(casebook; co-author) 1980 (1st ed.)
1989 (2d ed. )
Criminal Law Review Clark Boardman Callahan
(annual anthology of law 1979 - 1993
review articles; editor)
b. Reports
Report of the National Commission Gov't Printing Office
for the Review of Federal and 197 6
State Laws Relating to Wiretapping
and Electronic Surveillance
172
American Bar Association Standards Little Brown
for Criminal Justice, Standards 1980
Relating to Electronic Surveillance
c. Articles
1 . Law Reviews
Book Review, Cases and Materials on Law and Poverty
84 Harv. L. Rev. 262 (1970)
Juries for Juveniles; Solving the Dilemma
2 Loyola L. Rev. 1 (1971)
Grading Clinic Students
26 J. Leg. Ed. 223 (1974)
The Impact of the Double Jeopardy Clause on Juvenile
Court Proceedings
6 U. Tol. L. Rev. 1 (1976)
Wiretapping in West Germany
29 Am. J. Comp. Law 607 (1981)
Polizeiliches Abhoren in den Vereinigten Staaten
und in der Bundesrepublik Deutschland: Rechtslage
und Praxis [original and translated versions submitted]
1979 Montasschrift fur Kriminologie 65
Das Abhoren von Rechtsanwalten in der USA [original and
translated versions submitted]
1979 Zeitschrift fur Rechtspolitik 244
Die Kontrolle der Nachrichtendienste in den USA [original and
translated versions submitted]
1979 Zeitschrift fur Rechtspolitik 20
2. Other Law-Related Journals
A Habeas Corpus Primer for State Court
Defense Attorneys
3 Criminal Law Journal of Ohio 189 (1991)
Sentencing Reform and Pretrial Release
5 Federal Sentencing Reporter 220 (1993)
Bailbondsmen and the Federal Courts
57 Federal Probation 9 (1993)
173
3. Newsletters
The following articles appeared in the Search and Seizure Law
Report, published by Clark Boardman:
Use of Oral Testimony to Supplement an Incomplete Affidavit
(April, 1974)
Electronic Beepers (April, 1977)
Suppression of Electronic Surveillance Evidence (Dec, 1977)
Interspousal Wiretapping (Nov., 1978)
Dalia v. U.S. and Smith v. Maryland: Surveillance Outside
Scope of Title III (Aug., 1979)
Payton v. New York: Arrest Warrant Required for Arrest in
Suspect's Home (June, 1980)
Searches for Business Records, Books and Similar Documents
(Feb., 1981)
Michigan v. Summers: Detentions Permitted While Search Warrant
is Executed (Aug., 1981)
An Overview of Recent Developments in Fourth Amendment Law
(March, 1982)
Nighttime Searches (Dec, 1982)
Overview of Recent Developments in Fourth Amendment Law
(March-April, 1984)
Electronic Surveillance by Consent Under State Law
(Nov., 1984)
Overview of Recent Developments in Fourth Amendment Law
(March, 1985)
Overview of Recent Supreme Court Decisions on the Fourth
Amendment (Sept., 1986)
Privacy of Electronic Communications Under Title III
(March-April, 1987)
The Supreme Court's 1987-88 Fourth, Fifth, and Sixth
Amendment Cases (July, 1988)
Warrantless Searches of Inbound Mail From Foreign Countries
(March-April, 1989)
174
An Overview of the Supreme Court's Fourth and Fifth
Amendment Decisions in the 1988-89 Term (Nov., 1989)
d. Speeches
During the past twenty years, I have given numerous speeches,
most of which have been presented to lawyers or judges. Most
of these speeches, talks, or seminars have involved either
civil practice and procedure, criminal law, or criminal
procedure, and many have discussed constitutional or legal
policy issues.
It is usually not my practice to write out my speeches; I
talk, rather, from notes and other materials which I normally
discard afterwards. Thus, except for the first two items, I do
not have copies of any speeches to submit. A brief summary of
the topic and content of the other speeches of which I still
have some record is, however, submitted.
Criminal Defense Attorneys of Michigan: "Unconventional Search
Warrants and Orders," Nov. 6, 1993
Federal Judicial Ctr., Training Seminar for Probation and
Pretrial Services Officers, "Remarks to New Probation and
Pretrial Chiefs Conference," May 4, 1990
Toledo Women's Bar Ass'n, "Amendments to the Federal Rules and
Local Practice," Jan. 19, 1994
This was talk about recent eimendments to the Rules of
Civil Procedure and a description of our District's
Differentiated Case Management Program.
Columbus Bar Ass'n, "Ethical Issues for Litigators," Dec. 16,
1993
I was a member of a continuing legal education (CLE)
panel, along with an Ohio Supreme Court Justice and two
practicing attorneys. A series of scenarios presenting
ethical issues in civil cases was discussed informally.
Toledo Bar Ass'n, "District Court Local Rules," Dec. 14, 1993
This was an overview for a CLE program of our Local Civil
Rules and their implementation.
Toledo Bar Ass'n, "What Every State Court Attorney Must Know
About Federal Habeas Corpus," Oct. 8, 199 3
I summarized the general content of my materials, "A
Habeas Corpus Primer for State Court Defense Attorneys"
[copy submitted under S12.C.2) for a CLE program.
8
175
Ohio State Bar Ass'n, "Trial Practice From the Bench," Oct. 6,
1993
1 was a CLE panelist along with two or three state court
judges; we informally discussed practices and procedures
in our courts .
Toledo Bar Ass'n, Alternative Dispute Resolution, Sept. 22,
1993
This was a CLE discussion, along with some role playing
by me and two attorneys and a commentator, of various
types of alternative dispute resolution techniques.
Toledo Bar Ass'n, "What Every State Court Attorney Must Know
About Federal Habeas Corpus," Feb. 26, 1993
I summarized the general content of my materials, "A
Habeas Corpus Primer for State Court Defense Attorneys"
[copy submitted under S12.C.2] for a CLE program.
Columbus Bar Ass'n, "Handling the SOB Litigator," Dec. 17,
1992
I was a panelist for a CLE program along with a state
court trial judge and two practicing attorneys; we
responded to scenarios raising issues re. handling
conflicts eunong counsel.
Ohio Ass'n of Criminal Defense Attorneys: "Protecting the
Right to Federal Review While You are Still in State
Court, " Feb. 28, 1992
I summarized the general content of my materials, "A
Habeas Corpus Primer for State Court Defense Attorneys"
[copy submitted under $12. c. 2] for a CLE progrcun.
Toledo Bar Ass'n, "What Every State Court Attorney Must Know
About Federal Habeas Corpus," Oct. 4, 1991
I summarized the general content of my materials, "A
Habeas Corpus Primer for State Court Defense Attorneys"
[copy submitted under S12.C.2] for a CLE program.
Toledo Bar Ass'n, "Rule 11 Review," March 5, 1991
I discussed Rule 11 of the Federal Rules of Civil
Procedure and its application locally for a CLE progreun.
176
Toledo, Bar Ass'n, "Federal Sentencing," Nov. 26, 1990
This was a CLE prograin, which I moderated, discussing
practices under the Federal Sentencing Guidelines.
Ohio Auto Theft Investigators' Ass'n, "Principles of Search
and Seizure," Sept. 13, 1990
This was a speech for insurance company employees and law
enforcement officers about basic Fourth Amendment
doctrines .
American CLE Seminars, "Search and Seizure," May 22, 1990
This was an overview of recent developments in the law of
search and seizure for a CLE seminar.
Ohio Judicial College, "Ohio's Electronic Surveillance Law,"
May 21, 1987
This was a description of Ohio's newly enacted electronic
surveillance statute and its federal counterpart for an
Ohio appellate judge's seminar.
Ohio Academy of Trial Lawyers, "Federal Habeas Corpus Relief,"
Feb. 13, 1987
I discussed general principles of federal habeas corpus
for a criminal defense attorneys' CLE program.
13. Health; What is the present state of your health? List the
date of your last physical examination.
a. Health; excellent
b. Date of Last Physical Examination; February 11, 1993
14. Judicial Office; State (chronologically) any judicial offices
you have held, whether such position was elected or ap(>ointed,
and a description of the jurisdiction of each such court.
United States Magistrate
Northern District of Ohio 1979 to date
Appointed by the District Judges
Federal Court with general trial jurisdiction
15. Citations ; If you are or have been a judge, provide; (1)
citations for the ten most significant opinions you have
written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or where
10
177
your judgment was affirmed with significant criticism of your
substantive or procedural rulings; and (3) citations for your
significant opinions on federal and state constitutional
issues, together with the citation of appellate court rulings
on such opinions. If any of the opinions listed were not
officially reported, please provide copies of the opinions.
a. Ten Most Significant Decisions
Central Residents Council, Inc. v. Lucas Metropolitan
Housing Authority. No. C85-7610 (Dec. 14, 1989).
In this opinion, I concluded that the plaintiffs were
prevailing parties and that they were entitled to
attorneys' fees. The important aspect of this decision
was my discussion of standards for review of petitions
for attorneys' fees filed by prevailing counsel in civil
rights cases, and, as well, evaluation of the role of the
court in such circumstances . My approach was adopted by
Judge Potter.
Cheetwood v. Roberts. No. 3:90CV7432 (Jan. 15, 1993)
This is a Securities and RICO case in which I concluded
that the plaintiffs had failed to file their complaint
within the period of limitations. The case, which has
settled, raised interesting allegations of fraud and
other wrongdoing involving the sale of shares in real
estate developments.
In re Grand Jury Investigation Art Materials Industry.
No. Misc. 81-61 (Nov. 16, 1981).
I rejected claims by state attorneys general that they
were entitled to access to federal anti-trust grand jury
materials. An appeal was dismissed voluntarily. At the
time that this opinion was written, there was
considerable interest, particularly on the part of
counsel for public institutions that desired to pursue
anti-trust civil claims after investigation by a federal
grand jury, in the issues that it discusses. The position
that I took was later adopted in another case by the
Supreme Court .
Kreimes v. Dep't of the Treasury, No. C 79-264 (Nov. 9.
1983).
This was a suit by taxpayers to recover taxes that had
been paid following disallowance of a catastrophic loss
deduction. After return of a verdict in favor of the
plaintiffs, they sought an award of fees under the Equal
Access to Justice Act. I granted their request. My
11
178
decision was affirmed by the Sixth Circuit. This was one
of the first decisions construing and applying the Equal
Access to Justice Act.
Seilon v. Lamb. No C83-314 (July 27, 1983).
This was a securities case in which I concluded after
lengthy proceedings that a violation of applicable
securities laws had occurred and recommended appropriate
relief. The case involved complex securities law issues.
Judge Potter affirmed my decision. An appeal was
dismissed voluntarily.
Sharp V. Owens Corning Fiberqlas , No. 80-450 (Oct. 20,
1983, Aug. 2, 1984).
This was a class action employment discrimination case.
These decisions involve unusual issues that arose after
the defendants had filed a motion to remove the class
representatives. The motion to remove class
representatives was filed after the lawyer for the
plaintiff class had sued three of the class
representatives in state court for non-payment of
litigation costs.
Following a hearing, I ruled that the representatives
should be removed, the lawyer should be disqualified as
class counsel, and the remaining class representatives
should undertake to secure new counsel independent of
counsel who had been disqualified. Judge Walinski upheld
that ruling.
Thereafter, the defendants challenged the compliance of
the remaining class representatives with the directive
that they secure counsel for the class independent of the
attorney who had been disqualified as class counsel. I
concluded that the remaining class representatives had
not obtained counsel who were independent of the former
class counsel, and I recommended that class certification
be denied. This ruling was also upheld by Judge Walinski.
A subsequent appeal was dismissed voluntarily.
Both of my decisions resulted from unusual circumstances
that had no duplicate in any decision that I was able to
locate.
The attorney whose removal I ordered later sued me and
filed judicial misconduct complaints against me and Judge
Walinski. Those matters are discussed in my answers to
Questions 9 and 10 in Section IV.
12
179
Shellhanuner v. Lewallan. No. C82-689 (Nov. 22, 1983).
This was a case brought under the Fair Housing Act in
which the plaintiffs, a husband and wife, claimed that
their tenancy had been terminated by the landlord after
the wif3 had refused to engage in sexual activities with
him. I was the first judicial officer to hold that sexual
harassment of the sort alleged in the complaint
constituted unlawful discrimination on the basis of
gender under that statute. The Sixth Circuit upheld the
outcome of this case on appeal.
United States v. Yee, 129 F.R.D. 629 (N.D. Ohio 1990).
United States v. Yee. 134 F.R.D. 161 (N.D. Ohio 1990),
aff'd sub nom. United States v. Bonds. F.3d (6th
Cir. 1993) (Slip Op. Nos . 91-3608/3609/3610, Dec. 15,
1993)
The government in this case undertook to obtain approval
to use DNA evidence. This case involved the first
extensive challenge in a federal court to such evidence,
and the record that I developed during five weeks of
hearings has been used in state and federal courts
throughout the country in ruling on the admissibility of
DNA evidence .
In the first decision, I granted the defendants' request
for extensive prehearing discovery. That decision, which
was not appealed by the government to the District Judge,
was the first instance in which a DNA laboratory was
required to divulge substantial information about its
procedures .
In the second decision, I held that DNA evidence obtained
by the F.B.I. 's protocol and procedures met standards of
admissibility. That decision, which is the most extensive
reported examination of the admissibility of DNA
evidence, was affirmed by the Sixth Circuit in United
States V. Bonds. F.2d (6th Cir. 1993)(Slip.
Op., No. 91-3608/3609/3610, Dec. 15, 1993).
Women's Pavilion. Inc. v. Moriaritv. No. 91CV7250 (April
6, 1992, April 8, 1992) .
This case involved a suit by a local abortion clinic
against anti-abortionists who had, according to the
complaint, interfered unlawfully with the clinic's
legitimate operations.
In the first decision I held that the clinic and its
physician did not have to disclose the identities of the
clinic's patients. This decision involved important
13
180
questions of privilege and discovery in the context of
this and similar cases.
In the second decision I held that an individual
plaintiff: a) could sue the defendants under RICO (though
her pleading in this case was deficient), b) could not
maintain claims of trespass and interference with her
employment contract, and c) could assert an assault
claim.
In addition, the second decision also held that a
corporate plaintiff: a) could not bring an assault and
battery claim, b) could proceed to trial on its
interference with contract claim, c) sue on behalf of its
patients, staff, and employees, and d) maintain its RICO
claim against the defendants without alleging economic
harm.
Judge Potter rejected my ruling as to the RICO claim and
dismissed the case (remanding the state claims back to
state court) . The approach taken in my decision on the
use of RICO by abortion clinics conforms to the Supreme
Court's subsequent decision in National Organization for
Women v. Scheidler. U.S. , 114 S.Ct.
(1994) .
In re John W. Young v. Endsley. No. C86-7903 (May 2,
1988), rev ' d , 872 F.2d 176 (6th Cir. 1989)
In this case I held that a statutory limitation on the
liability of shipowners was not applicable to the owners
of pleasure boats. My decision was reversed by the Sixth
Circuit. The case is significant because it addresses the
issue of whether persons injured in boating accidents
involving pleasure craft can recover damages in excess of
the value (which is often quite low) of the boat and its
goods .
b. Reversals by the Court of Appeals
D. Ct. No. Caption and Summary
Ct . App . No .
77-372 Hand v. Central Transport, Inc.
84-3850
This was an antitrust case in which I
recommended that summary judgment be granted
in the defendant's favor; that recommendation
was upheld by the District Judge.
The court of appeals reversed. Hand v. Central
Transport. 779 F.2d 8 (6th Cir. 1985). The
14
181
court held that the proper standard had been
applied, but that evidence submitted by the
plaintiff in his objections to the District
Judge should have been taken into account.
78-174 Heid v. Secretary of H.H.S.
83-3747
This was a social security disability case in
which I entered an order denying benefits to
the plaintiff.
The court of appeals remanded to the Secretary
for further consideration in light of a
statute that required such result for cases
pending in the federal courts as of Sept. 19,
1984 (my decision had been entered on Sept.
14, 1983).
1^'^^ Lowe V. Chem-Trol Chemical Co.. Inc.
This was an action under the Vietnam Era
Veterans Readjustment Act in which I
recommended that summary judgment be entered
for the plaintiffs; that recommendation was
upheld by the District Judge.
The court of appeals reversed. Raypole v.
Chem-Trol Chemical Co.. Inc. . ^ 754 F.2d 169
(6th Cir. 1985). Noting that the case was one
of first impression, the appellate court held
that contributions that I concluded had been
required under the Act had not been mandated
by the Act.
l^'ll"^ Ravpole v. Chemi-trol Chemical Co.. inc.
84-3041 '
This is a companion case to the preceding
case.
79-328 Philips v. Secretary of H.H.S.
8 1—3130
This is a social security case in which I
recommended that benefits not be awarded; the
District Judge upheld that recommendation.
The court of appeals held that substantial
evidence did not support the Secretary's
decision to deny benefits.
15
182
79-493
80-3764
81-63
82-3329
Linton v. Perini
This was a habeas corpus case in which I
reconunended that relief be denied; that
reconunendation was upheld by the District
Judge .
The court of appeals, Linton v. Perini. 656
F.2d 207 (6th Cir. 1981), held that,
regardless of the absence of prejudice to the
defendant, the petitioner's Sixth Amendment
right to counsel had been denied when a
continuance by newly retained counsel had been
denied, and trial had conunenced ten days after
that lawyer had first appeared.
Smith V. Perini
This was a habeas corpus case in which I
recommended dismissal on the basis that the
petitioner had failed to exhaust his state
court remedies and that, in any event, his
claims were without merit. My recommendation
was adopted by the District Judge.
The court of appeals, agreeing that exhaustion
had not occurred, ordered that the case be
dismissed for want of exhaustion without
prejudice to the petitioner to relitigate the
merits of his claims once exhaustion had been
accomplished. Between the filing of my Report
and Recommendation and the court of appeal's
reversal, the Supreme Court had held in Rose
V. Lundy. 455 U.S. 509 (1982), that where a
petition contains unexhausted claims, it must
be dismissed without consideration of the
merits .
81-436
84-3777
86-3421
Nichols V. Perini
This was a habeas corpus case in which I twice
recommended that relief be granted on the
basis that the petitioner had not been
informed adequately about the sentencing
consequences of a plea of guilty.
My first Report and Recommendation, which had
been adopted by the District Judge, was
reversed on the basis that I had
misinterpreted the applicable sentencing
statute. The case was remanded, and I again
16
183
found that the petitioner had not understood
the sentencing consequences. That decision was
upheld by the District Judge
The court of appeals reversed. Nichols v.
Perini, 818 F.2d 554 {6th Cir. 1987). The
court held that I had failed to take into
account factual findings by the Ohio courts In
their review of the petitioner's claims.
81-499 Hurst v. Schweiker
83-3066
This was a social security case in which I
recommended denial of benefits and the
recommendation was adopted by the District
Judge .
The court of appeals. Hurst v. Schweiker, 725
F.2d 53 (6th Cir. 1984), held that substantial
evidence did not support the denial of
benefits .
81-594 Billings v. Bharmota
84-3453
This was a prisoner civil rights case in which
I recommended that the defendant's motion for
summary judgment be denied. That
recommendation was upheld by the District
Judge .
The court of appeals reversed on the basis
that the defendant's conduct had not shown
deliberate indifference to the plaintiff's
medical needs .
81-604 Bell & Beckwith v. USA
83-3582
This was an interpleader action brought by a
stock broker to resolve the ownership of funds
in its custody. The parties consented to my
jurisdiction, and, following a pretrial
conference, I entered an order directing
disbursement of the funds .
The court of appeals reversed. Bell & Beckwith
V. United States. 766 F.2d 910 (6th Cir.
1985), on the basis that there had been no
federal question jurisdictional basis for
entertaining the interpleader action.
17
184
81-774 Riverview Investments v. Ottawa County
84-3445 Community Improvement Corp.
This was a civil rights and antitrust case in
which the plainti££, a landowner who had an
agreement with a shopping center for
development of his property, claimed that the
defendants' refusal to issue industrial
revenue bonds (such issuance being a condition
of the plaintiff's agreement with the shopping
center) violated the civil rights act and
antitrust laws. I recommended summary judgment
in defendants' favor, and that reconmiendation
was approved by the District Judge.
The court of appeals held that the decision
regarding the civil rights -claim had been
correct; it remanded on the antitrust claim
for further development of the record in light
of intervening Supreme Court decisions.
Riverview Investments. Inc. v. Ottawa County
Improvement Corp. . 769 F.2d 324 (6th Cir.
1985) .
82-10 Hazelwood v. Bharmota
83-3347
83-3202 This was a medical malpractice case in which I
recommended that summary judgment be granted
to the defendants because the plaintiff failed
to file the complaint within the applicable
limitations period. The recommendation was
adopted by the District Judge .
The court of appeals vacated and remanded for
further consideration in light of an
intervening decision by the Ohio Supreme
Court .
82-208 Oqlebay Norton Co. v. CSX Corp.
85-3093
85-3069 This was an action brought by a shipowner
against the operator of a dock, in which the
plaintiff sought indemnification from the
dockowner after a seaman's claim against the
shipping company had been settled. The parties
consented to my jurisdiction, and I entered
judgment after a nonjury trial denying the
indemnity claim but awarding contribution.
The court of appeals held that I had
misapplied the legal standard applicable to
the plaintiff's indemnity claim.
18
185
82-528 Franchinni v. Secretary of H.H.S.
84-3176
This was a social security disability case in
which I recommended denying benefits to the
plaintiff. The District Court upheld my
recommendation .
On appeal, the court of appeals remanded to
the Secretary for further consideration in
light of a statute that required such result
for cases pending in the federal courts as of
Sept. 19, 1984 (my decision had been entered
on Nov. 22, 1983) .
82-876 Faust v. Heckler
83-3919
This was a social security case in which I
ordered that benefits be denied.
On appeal, the court of appeals remanded to
the Secretary for further consideration in
light of a statute that required such result
for cases pending in the federal courts as of
Sept. 19, 1984 (my decision had been entered
on Oct. 25, 1983).
CR83-129 USA v. Bell
84-3534
This was a criminal case in which I
recommended that the defendant's motion to
suppress be granted. The basis for that
recommendation was a finding that an F.B.I,
agent had not had an adequate basis for
frisking the defendant. My recommendation was
upheld by the District Judge.
The court of appeals reversed, United States
V. Bell. 762 F.2d 495 (6th Cir. 1985), on the
basis that the agent had had a sufficient
cause for the frisk.
83-238 Leal v. Perini
84-3873
87-3014 This was a habeas corpus case in which I twice
recommended that relief be granted to the
petitioner on the basis that the prosecution
had improperly withheld material evidence to
which the petitioner had been entitled (a
taped conversation, a prior inconsistent
statement by the state's principal witness,
and lie detector results indicating
untruthfulness on the part of that witness).
19
186
Each of my recommendations was upheld by the
District Judge.
In its first decision, the court of appeals
remanded for further consideration in light of
an intervening Supreme Court decision. On
remand, I again recommended granting relief,
and the recommendation was approved by the
District Judge.
In its second decision, the court of appeals
held that the evidence that had been
%nrongfully withheld had not been material to
the petitioner's conviction. The petitioner
has subsequently received a governor's
commutation.
83-266 Steinoraber v. Heckler
84-3348
This was a social security case in which I
ordered denial of benefits.
The court of appeals remanded to the Secretary
for further consideration in light of evidence
that the plaintiff had undergone back surgery
following entry of my decision and while the
case was pending before the appellate court.
83-536 Tiernev v. City of Toledo
85-3016
85-3290 This was a civil rights case brought by a
88-4047 officer against the City of Toledo and its
Police Patrolmens' Union, in which the
plaintiff alleged that the "fair share"
agreement between the City and Union violated
his First Amendment rights due to inadequate
procedures for ensuring that the plaintiff's
contribution was spent solely for collective
bargaining purposes .
The parties consented to my jurisdiction.
Following an injunction hearing, I held that
the union's procedures met constitutional
standards .
The court of appeals upheld that decision.
Tiernev v. City of Toledo. 785 F.2d 310 (6th
Cir.), vacated. 475 U.S. 1115 (1986).
Thereafter, following an intervening Supreme
Court decision, the appellate court's decision
was vacated, and it remanded the case to me
for further proceedings.
20
187
Following further proceedings, I ruled that
the union's revised procedures met
constitutional requirements .
That decision was reversed by the Sixth
Circuit, Tierney v. City of Toledo. 824 P. 2d
1497 {6th Cir. 1987), on the basis that the
procedures that I had approved were not
sufficient to protect the plaintiff's First
Amendment rights.
Thereafter, I again found the union's plan, as
further revised, to be acceptable. In
addition, I rejected the plaintiff's demand
for extensive access to the union's books and
records .
That decision was affirmed in part and
reversed in part by the Sixth Circuit in
Tiernev v. City of Toledo. 917 F.2d 927 (6th
Cir. 1990), with the court directing further
proceedings relative as to whether the audit
procedures were adequate to verify
expenditures and requiring me to order the
union to make specific disclosures concerning
its income and expenditures.
83-536 Central States Southeast and Southwest Area
84-3869 Pension Fund v. Transservice Systems. Inc.
This was an action brought by a pension fund
to collect contributions from the defendant,
who was the former employer of a beneficiary
of the fund. Following a nonjury trial (the
parties having consented to my jurisdiction),
I held in favor of the plaintiff.
The court of appeals remanded for further
consideration with regard to an issue that it
concluded I had not adequately considered and
for further clarification of my original
decision.
85-730 Wallace v. Hubbard
84-3274
This was a pro se prisoner civil rights case
alleging inadequate medical treatment; the
only named defendant was the warden. I
recommended that the defendant's dismissal
motion be granted; that recommendation was
adopted by the District Judge.
21
188
The court of appeals reversed on the basis
that the plaintiff should be given time in
which to undertake to amend his complaint to
state more clearly the parties against whom he
was seeking relief.
83-854 Akbar v. Seiter
84-3052
This was a pro se prisoner civil rights case
in which the plaintiff claimed that
regulations regarding clothing violated his
First Amendment rights . I recommended that the
complaint be dismissed on the basis of res
judicata, and that recommendation was upheld
by the District Judge.
The court of appeals affirmed in part and
reversed in part, with the- reversal being
based on the determination that some of
plaintiff's claims had not been resolved in
his earlier litigation.
83-1084 Ward v. Secretary of H.H.S.
85-3703
This was a social security case in which I
recommended that benefits be denied, and that
recommendation was upheld by the District
Judge .
The court of appeals affirmed in part and
vacated and remanded for the purpose of
consideration of decisions by that court that
had been rendered after the date of my Report
and Recommendation.
84-7016 Brown v. Seiter
84-3420
This was a pro se prisoner civil rights case,
in which I recommended dismissal, and that
recommendation was upheld by the District
Judge .
The court of appeals affirmed in part and
reversed in part on the basis that the
complaint adequately stated a cause of action
as to one of the defendants.
84-7124 McLaughlin v. Excel Wire & Cable Co.
85-3258
This was an age discrimination case in which I
recommended that summary judgment be granted
for the defendant. I concluded that plaintiff
had not filed his administrative complaint
22
189
within the requisite period and an election of
remedies precluding other claims had occurred.
That recommendation was upheld by the District
Judge .
The court of appeals reversed, holding that
equitable tolling had extended the period for
filing and no election of remedies had
occurred .
84-7388 Crawford v. Secretary of H.H.S.
86-3562
This was a social security case in which the
parties consented to my jurisdiction and in
which I denied benefits.
The court of appeals held that substantial
evidence had not supported the Secretary's
denial of benefits.
84-7623 Hoffman v. Glidden
86-3738
This was an employment discrimination case
that was referred to me for Special Master
hearing. I recommended that defendant's motion
for summary judgment be granted, and that
recommendation was adopted by the District
Judge .
The court of appeals reversed on the basis
that there was a genuine dispute of material
fact concerning the alleged pretextuality ot
the defendant's reasons for its actions.
84-7758 Berry v. Secretary of H.H.S.
86-3491
This was a social security case in which the
parties consented to my jurisdiction and I
ruled that benefits be denied.
The court of appeals reversed on the basis
that the Secretary's decision to deny benefits
was not supported by substantial evidence.
84-7777 Brown v. Secretary of H.H.S.
86-3886
This was a social security case in which I
recommended that benefits be denied, and that
recommendation was upheld by the District
Judge .
23
190
The court of appeals reversed on the basis
that the Secretary's decision to deny benefits
was not supported by substantial evidence.
84-8054 Canderm. Inc. v. Elder Pharmaceuticals. Inc.
87-3352
This was a breach of contract and tortious
interference with contractual relations case
in which the parties consented to my
jurisdiction. Prior to trial (which resulted
in a verdict for the plaintiff), I dismissed
plaintiff's claims as to one defendant and its
punitive damages claim; those rulings were
upheld by the court of appeals . I also had
ruled prior to trial that the defendant had
not been entitled to advance a particular
defense.
That ruling was reversed on appeal on the
basis that there were material disputes of
fact requiring determination of by the jury.
Canderm. Inc. v. Elder Pharmaceutical. Inc..
862 F.2d 597 (6th Cir. 1988).
84-8088 Hardin v. Secretary of H.H.S.
85-3967
This was a social security case in which the
parties had consented to my jurisdiction and I
ordered that benefits be awarded.
The court of appeals remanded on the basis of
an intervening decision by that court.
85-7464 In re Bell & Beckwith
87-3006
This was an action brought by the trustee of a
bankrupt stock brokerage to recoup funds paid
to an attorney who had been retained by the
firm's principal after the principal's fraud
had been uncovered. The parties consented to
my jurisdiction. Following trial, I found that
the attorney had neither known nor had reason
to know that the funds that he had been paid
at the outset of his representation of the
principal were proceeds of the fraud.
The court of appeals reversed, holding that
the attorney had been under a duty of incpiiry
and thus was chargeable with knowledge that
the funds he had received had derived from the
fraud. In re Bell & Beckwith. 838 F.2d 844
(6th Cir. 1988) .
24
191
86-7903
88-3483
87-7684
89-3750
89-3777
89-7031
90-3371
90CV7617
92-3821
Ends lev v. Young
This was an admiralty case in which the
parties consented to my jurisdiction. I
granted summary judgment in favor of a party
injured by an explosion on a pleasure boat.
That judgment was limited to the issue of
liability: I held that a statutory limitation
of a vessel owner's liability was not
applicable to the owners of pleasure boats.
The court of appeals, reversed, holding that
the statutory limitation of liability was
applicable to commercial ships and pleasure
craft alike. In re John Young. 872 F.2d 176
(6th Cir. 1989) .
Rodriguez v. Frankenmuth Mutual Ins. Co.
This was a diversity case in which, following
trial and return of a jury verdict in favor of
the plaintiff, I entered judgment
notwithstanding the verdict in favor of the
defendant. I held that there had been a
failure of proof as to proximate cause and
damages .
The court of appeals reversed, holding that
adequate evidence supported the jury's
verdict.
Simpson v. Diversitech General. Inc.
This was an employment discrimination case in
which the parties consented to my
jurisdiction. Following trial, I entered
judgment for the defendant on the basis that
defendant had met its burden of proof in a
"mixed motives" case that its decisions would
have been the same without regard to the
racial animus of one of its employees.
The court of appeals held that the defendant
had not met that burden.
Fifth Third Bank v. Dziersk. et al .
This was a diversity case in which I granted
summary judgment in favor of the plaintiff,
which claimed that the defendant bank had
wrongfully accepted deposit of a check from
the plaintiff payable to two individuals
25
192
without the signature of one of the
individuals having been subscribed to the
check.
The court of appeals reversed, holding that I
had erred when I declined to permit the
defendant bank to assert a contributory
negligence defense.
I am aware of no decision by the court of appeals in
which, though my decisions were affirmed, the court was
significantly critical of my substantive or procedural
rulings.
Significant Federal or State Constitutional Decisions
In re Affidavit for Issuance of Multiple Search Warrants.
No. 85-7070M (Dec. 5, 1985).
In this case an individual whose property had been seized
claimed that its continued retention by the government
constituted a violation of due process. I rejected his
claim, but directed the government to proceed with a
forfeiture proceeding by a date certain. There was no
appeal. The case was significant because it raised
interesting issues of the ability of the state to hold
seized property without proceeding promptly with further
investigation and return of criminal charges .
Barnett v. Bell. No. C 80-563 (July 2, 1986).
Plaintiffs in this case contended that the conditions at
the Hancock County Jail violated the Eighth Amendment. I
concluded that the conditions were not constitutionally
defective and that the plaintiffs were not entitled to
relief. Judge Potter upheld my ruling. An appeal was
voluntarily dismissed. The significance of the case
related to its institutional reform aspects.
Culp V. City of Toledo. No. C 88-7760 (July 30, 1990).
This was a suit by a dismissed employee of the City of
Toledo, who claimed that the Federal Constitution and
state law had been violated by the means by which he had
been terminated. I rejected many of his claims, but also
concluded that his right to due process had been
violated. Following my ruling, the case was settled. The
case was significant because it involved an
interpretation in light of the due process clause of a
provision of the City charter requiring that terminations
be based on cause.
26
193
Doe V. City of Toledo. C 81-772 (March 20, 1986).
This case involved an application by a television station
to disclose the name of a plaintiff who had been
permitted to proceed anonymously with a civil claim to
recover funds that had been seized by a police officer.
I held that such disclosure should occur. There was no
appeal. The significance of the case resulted from the
conflict between the media's right of access and the
individual's right of privacy where no criminal charges
were pending.
Downton v. Perini. 511 F. Supp. 258 (N.D. Ohio 1981).
This was a case of first impression in any federal court.
I held that an attorney's threat to withdraw from further
representing his client in a capital murder case unless
the client accepted his recommendation to plead guilty
led to an involuntary plea and denial of the right to
counsel. My recommendation that habeas relief be granted
was upheld. An appeal was dismissed voluntarily.
Glover v. McMackin. No. 3:90CV7232 (Sept. 18, 1990,
July 23, 1992) .
This was a habeas corpus case in which I concluded that
the defendant's conviction violated the double jeopardy
clause of the Fifth Amendment. The Sixth Circuit remanded
for further evidence. Glover v. McMackin. 950 F.2d 1236
(6th Cir. 1990). After taking further evidence, I again
concluded that the double jeopardy clause had been
violated, and recommended that relief be granted. Judge
Potter upheld my ruling. There was no appeal. The case
involved a significant issue under the double jeopardy
clause.
Hernandez v. County of Seneca. No. C 82-475 (July 20,
1983) .
This was a civil rights case challenging the conditions
of confinement at the Seneca County Jail. Following an
injunction hearing, I concluded that the conditions with
regard to danger of and from fire justified granting
injunctive relief. There was no appeal. The case was
important because it involved important issues under the
Eighth Amendment and resulted, somewhat unusually, in a
order directing that a county jail be closed, rather then
rehabilitated or reconstructed to conform to
constitutional requirements.
Tierney v. City of Toledo. No. C83-430 (Aug. 2, 1984;
Dec. 11, 1984; March 26, 1985; April 27, 1988; Nov. 8,
27
194
1988). Court of Appeals, Tiernev v. City of Toledo. (No.
85-3016 & 85-3290), Jan. 14, 1986; 824 F.2d 1497 (6th
Cir. 1987); 917 F.2d 927 (6th Cir. 1990).
This is a series of opinions involving a challenge to the
union's agency fee rebate procedure. I initially held
that the procedures afforded appropriate constitutional
protection to the First Amendment interests of the
plaintiffs. That decision was affirmed in an unpublished
opinion on appeal by the Sixth Circuit.
Thereafter, the Supreme Court decided Chicago Teachers
Union v. Hudson. 475 U.S. 252 (1986). That Court also
vacated the Sixth Circuit's affirmance and remanded for
further consideration in light of Hudson. When the case
returned to me, I found the changes that had been
instituted in the union's plan were - adequate . That
decision was reversed by the Sixth Circuit. Tierney v.
City of Toledo. 824 F.2d 1497 (6th Cir. 1987).
After that decision, I again found the plan, as amended,
acceptable. In addition, I rejected the plaintiff's
demand for extensive access to the union's books and
records. This decision was reversed in part and affirmed
in part by the Sixth Circuit. Tierney v. City of Toledo.
917 F.2d 927 (6th Cir. 1990). Thereafter the parties
negotiated a settlement.
This series of opinions was significant because they
involved important and, at the time they were decided,
unsettled issues under the First Amendment about the
constitutionality of "fair share" programs and related
procedural questions.
In addition to the foregoing decisions, the following
were cases raising constitutional issues in which my
decisions were reversed by the Court of Appeals.
Summaries of these decisions appear in §15. b. and copies
of the opinions are included with the other materials
submitted with regard to that section.
Brown V. Seiter. No. C84-7016
Billings v. Bharmota. No. C81-594
Leal V. Perini. No. C83-238
Linton v. Perini. No. C79-493
Nichols V. Perini. No. 81-436
28
195
Riverview Investments v. Ottawa County CommunitY
Improvement Corp. . No. C84-3445
USA V. Bell. No. CR83-129
16. Public Office; State (chronologically) any public offices you
have held, other than judicial offices, including the terms of
service and whether such positions were elected or appointed.
State (chronologically) any unsuccessful candidacies for
elective public office.
Lucas County Mental Health Board 1981-87
Board Member (appointed)
Lucas County Children Services Board 1987-92
Board Member (appointed)
Childrens' Trust Fund 1986-92
Board Member (appointed)
Juvenile Justice Advisory Board
Board Member (appointed) 1990-92
I have never been a candidate for elective public
office.
17 . Legal Career;
a. Describe chronologically your legal career after
graduation from law school including;
1. whether you served as a clerk to a judge, and if so,
the name of the judge, the court, and the dates of
the period you were a clerk;
I did not serve as a clerk to a judge.
2. whether you practiced alone, and if so, the
addresses and dates;
While a law professor at the University of Toledo
(1970-79), I participated in three cases in the
Lucas County, Ohio, Juvenile Court. In two of these
cases I was appointed by the court to represent
parents of children alleged to have been abused or
neglected. In the third case I represented
grandparents seeking to visit with and obtain
custody of their grandchildren.
In 1978 and 1979 I consulted in two cases with
lawyers defending clients in criminal cases
29
196
involving electronic surveillance by the
government. This work was done at home.
Other than these matters, I do not recall any other
instances in which I engaged in the practice of law
on my own.
the dates, names and addresses of law firms or
offices, companies or governmental agencies with
which you have been connected, and the nature of
your connection with each;
Gardner, Carton, Douglas, Chilgren & Waud
[now: Gardner, Carton & Douglas]
321 N. Clark St. Associate
Chicago, Illinois 60610 1966-68
Cook County Legal Assistance Fndtn.
1146 Westgate St. Staff Attorney
Oak Park, Illinois 60301 1968-70
Church Foundation of Greater Chicago
112 East Chestnut St. Volunteer Atty.
Chicago, Illinois 60611 1966-70
Lucas County Prosecutor's Office
Lucas County Courthouse Asst. Prosecutor
Toledo, Ohio 43624 1972-73
1. What has been the general character of your law
practice, dividing it into periods with dates of
its character has changed over the years?
While employed as an associate with Gardner, Carton,
Douglas, Chilgren & Waud in Chicago (1966-68), I worked
with most, if not all of the partners and associates on
a broad range of matters. The work encompassed personal
injury defense, contract and commercial law, corporate
matters, securities underwriting, real estate, probate,
and taxation.
From 1968-70, I was a staff attorney with the Cook County
Legal Assistance Foundation, assigned to the agency's
Evanston, Illinois, office. During that time, I
represented poor clients in housing, consumer, welfare,
and juvenile law matters.
Beginning shortly after my employment with Gardner,
Carton, Douglas, Chilgren & Waud, and continuing until we
moved from Chicago in 1970, I was a volunteer legal aid
attorney with the Church Foundation of Greater Chicago.
30
197
I worked one night a month interviewing clients in a
neighborhood office located in a church basement. Where
appropriate, I thereafter either represented those
clients or referred them to other counsel. This work
encompassed housing, consumer, and welfare matters.
For a period of about ten months while I was teaching at
the University of Toledo, I served on a part-time basis
as an Assistant Lucas County Prosecutor in charge of the
Juvenile Court docket.
2. Describe your typical former clients, and mention the
areas, if any, in which you have specialized.
The clients at Gardner, Carton, Douglas, Chilgren & Waud
were primarily companies located or doing business in the
Chicago area. The firm's clients were those typical of a
moderate sized large city law firm. I had no specialty
while working there.
The clients whom I represented as a Staff Attorney with
the Cook County Legal Assistance Foundation (and, as
well, as a volunteer with the Church Federation) were
poor people who otherwise would not have had counsel.
During my second year with the Foundation, I handled all
of the juvenile court cases in the office, and developed
a degree of specialization in that area.
During my time with the Lucas County Prosecutor's Office,
I, along with student interns authorized to practice
under Ohio's student practice rule, represented the state
in delinquency and nondelinquency matters. This called
for expertise in criminal law and procedure. Juvenile
law, and juvenile court procedure.
c. 1. Did you appear in court frequency, occasionally, or
not at all?
While working with Gardner, Carton, Douglas, Chilgren &
Waud, I appeared in court occasionally. Those appearances
were limited to pretrial motions and pretrial
conferences, and occurred principally in the Circuit
Court (i.e., general trial court).
When working with the Cook County Legal Assistance
Foundation, I appeared in a large number of courts,
including federal district court, the Cook County Circuit
Court and municipal courts in Chicago and its suburbs. I
would be in court several times weekly.
Though I attended court while teaching at the Law School
of the University of Toledo, I rarely participated in
31
198
proceedings. Instead, I would supervise students enrolled
in the Law School's criminal law clinical progreun.
During the approximately ten month period that I worked
part-time as an Assistant County Prosecutor, I would be
in juvenile court two or three times a week, usually for
an hour or two on each occasion.
2. Nhat percentage of these appearances was in:
(a) federal courts: 5%
(b) state courts of record: 95%
(c) other courts 0%
3. What percentage of your litigation was:
(a) civil: '90%
(b) criminal: 10%
4. State the approximate number of cases in courts of
record you tried to verdict or judgment (rather
than settled), indicating whether you were sole
counsel, chief counsel, or associate counsel.
With Gardner, Carton, Douglas, Chilgren & Waud, I
tried no cases to verdict or judgment.
With the Cook County Legal Assistance Foundation, I
tried approximately twenty cases to verdict or
judgment. I was sole counsel in these cases.
While a part-time Assistant County Prosecutor, I
tried approximately ten cases to verdict or
judgment.
5. What percentage of these trials was:
(a) jury; 0%
(b) non-jury 100%
18. Litigation; Describe the ten most significant litigated
matters which you personally handled. Give the citations, if
the cases were reported, and the docket number and date if
unreported. Give a capsule summary of the substance of each
case. Identify the party or parties whom you represented;
describe briefly the nature of your participation in the
litigation and the final disposition of the case.
While a legal aid attorney, I asserted successfully a defense
of unconscionability against collection agencies in a couple
of cases. At the time, this was a relatively novel legal issue
32
199
which was being asserted principally by legal aid lawyers. The
cases were thereafter dismissed. I was sole counsel.
In several juvenile cases as a legal aid attorney I raised
issues relating to pretrial discovery and the right to jury
trial. Either the discovery motions would be overruled or
discovery would be forthcoming informally without a ruling.
The demands for trial by jury were overruled. I was sole
counsel .
With the Chief Attorney and other lawyers in our legal aid
office, I represented a group of Black Northwestern University
students who were subjected to disciplinary proceedings that
might have led to their expulsion. As a result of our efforts,
due process procedures were developed and implemented. I do
not recall the outcome of those proceedings, though I believe
the students were not severely disciplined. '
While a law professor at the University of Toledo I was
appointed in two cases by the Lucas County, Ohio, Juvenile
Court to represent parents of children alleged to have been
abused or neglected. In those cases I encouraged the court to
use an innovative procedural mechanism to work toward
restoration of custody to the parents under controlled
circumstances. In another case I successfully asserted the
right of grandparents to visit with grandchildren who had been
left with a child welfare agency by their parents; in due
course and over the objection of the agency, which sought to
place the children in separate foster homes, the grandparents
were permitted to adopt the children.
None of these matters resulted in reported decisions. I have
no recollection of the ncunes of the cases or individual
parties. The following, however, are attorneys with whom I
worked while practicing as an attorney in the Chicago area.
Except for the lawyers with whom I worked at Gardner, Carton
& Douglas, I have indicated their relationship to me as of
that time.
Robert K. Downs (Volunteer, Church Federation)
Downs & Downs, P.C. 708 848-0700
1010 Lake Street #620
Oak Park, Illinois 60301
Robert G. Freeman (Associate, Cook Co. Legal Asst. Fndtn. )
125 Longs Peak Drive 303 823-6622
P.O. Box 1126
Lyons, Colorado 80540
33
200
Hon. Marvin Gavin (Exec. Dir.,
Circuit Court of Cook County
16501 South Kedzie
Markham, Illinois 60426
Hon. Curtis Heaston (Exec. Dir.
Circuit Court of Cook County
Richard J. Daley Center
Chicago, Illinois 60602
Cook Co. Legal Asst. Fndtn.)
708 210-4606
Cook Co. Legal Asst. Fndtn.)
312 443-4337
Hon. Leo E. Holt (Supervisor, Cook Co. Legal Asst,
Circuit Court of Cook County 708 210-4220
16501 South Kedzie
Markhajn, Illinois 60426
Fndtn . )
312 644-3000
William L. Morrison
Gardner, Carton & Douglas
Quaker Tower, Suite 3400
321 North Clark St.
Chicago, Illinois 60610-4795
Prof. Sheldon H. Nahmod (Associate, Cook Co. Legal Asst.)
Chicago Kent College of Law 312 906-5261
Illinois Institute of Technology
565 West Adams St.
Chicago, Illinois 60661-3691
312 644-3000
John F. Notz
Gardner, Carton & Douglas
Quaker Tower, Suite 3400
321 North Clark St.
Chicago, Illinois 60610-4795
Maria Ann Skirnick (Associate, Cook Co. Legal Asst.)
19 Rockwood Road West 516 365-7186
Plandome, New York 11030
312 644-3000
Joe A. Sutherland
Gardner, Carton & Douglas
Quaker Tower, Suite 3400
321 North Clark St.
Chicago, Illinois 60610-4795
19 • Legal Activities; Describe the most significant legal
activities you have pursued, including significant litigation
which did not progress to trial or legal matters that did not
involve litigation. Describe the nature of your participation.
In this question, please omit any information protected by the
attorney-client privilege (unless the privilege has been
waived) .
34
201
I believe that my most significant contributions have been
made while a law teacher, judicial officer, and legal writer,
rather than during my four years as a practicing attorney.
Certainly my most extensive experience with litigation has
come during the fourteen years that I have been serving as
United States Magistrate. Throughout my time of service, I
have been responsible for all social security and habeas
corpus cases. For the first several years over 100 social
security cases and more than 60 habeas corpus cases were filed
annually. Recently, there has been some decline in the number
of filings in these categories, especially in the social
security cases. For the past five years there have been
between 40 and 70 social security cases filed annually. For
the past three years, there have been about 45 habeas cases
filed annually.
In addition, for several years, I was responsible for initial
hearing and determination of all pretrial motions in all civil
rights cases; approximately 130 cases in this category were
filed annually during that period. For several years, these
cases generated a substantial volume of motions that were
referred to me. The extent of my work in this area has
diminished in the past few years, due to the appointment of a
pro se law clerk who prepares opinions in prisoner civil
rights cases, a decline in some years in the number of filings
in the other civil rights categories, and an increase of my
own trial docket and a decrease in the District Judge's
dockets .
Throughout my tenure, I have also had a large number and
variety of matters referred to me in other types of civil
litigation. Among these have been anti-trust, securities,
personal injury and product liability, contract, commercial
cases, and patent. I estimate that I have handled the pretrial
motion work in a dozen or more cases annually from these
categories; several of those cases involved extensive pretrial
motion practice.
Since shortly after being appointed, I have been responsible
for initial hearing and determination of all pretrial matters
in all criminal cases, of which about 90 are filed annually.
I empanel and supervise the grand juries, issue warrants,
conduct detention hearings, hold hearings on motions to
suppress, adjudicate motions to dismiss and for discovery, and
handle any other pretrial matters in criminal cases. The
volume and complexity of pretrial motion work in this area of
the docket has increased in the past few years as the
government has filed several multi-defendant, multi-count drug
cases .
35
202
Finally, my o%m civil docket has expanded steadily throughout
my time of service as Magistrate, as lawyers have consented to
have me be substituted for the District Judge. I have had
extensive civil jury and nonjury trial experience, and my
consent docket is presently about 130 cases. This is eibout a
half to a third the size of the docket of some of the active
District Judges in our District.
36
203
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated receipts
from deferred income arrangements stock options, uncompleted
contracts and other future benefits which you expect to derive
from previous business relationships, professional services,
firm memberships, former employers, clients, or customers.
Please describe the arrangements you have made to be
compensated in the future for any financial or business
interest.
I have been contributing to the Judicial Retirement System
since 1989. The benefits of this annuity program will be
forfeited upon retirement under 28 U.S.C. S371(a), relating to
Article III judges.
I am a participant in the Thrift Savings Plan contributing
five percent of my salary. I plan to continue doing so, and to
withdraw the funds on retirement.
While at the University of Toledo I participated in the State
Teachers Retirement System. I will receive an annuity of
$1,700 per month from that program on reaching age 65.
I have an annuity that I purchased while a law professor at
the University of Toledo with the Aetna Life Insurance
Company. The present account value is $6,900. I anticipate
receiving the benefits at age 65.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the categories of
litigation and financial arrangements that are likely to
present potential conf licts-of-interest during your initial
service in the position to which you have been nominated.
The only potential area of conflict of which I am aware would
arise. in cases in which the University of Toledo (my wife's
employer) is a party. I have recused and will continue to
recuse myself from cases involving the University.
I anticipate no potential conflicts of interest with regard to
my finances, and I will adhere to the requirements of the Code
of Judicial Conduct concerning any conflicts of interest.
Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during your
service with the court? If so explain.
37
204
I expect to do the writing for the law publishers (Clarlc
Boardman Callahan and Anderson Publishing Company) that I have
done in the past. I expect, accordingly, to update my
treatises. The Law of Electronic Surveillance (Clark Boardman
Callahan) and 2 Andersons Ohio Family Law; Juvenile Court
Practice and Procedure, vnrite the annual Criminal Procedure
Handbook, and edit the Criminal Law Review anthology of law
review articles.
List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more (If you prefer to do so,
copies of the financial disclosure report, required by the
Ethics in Government Act of 1978, may be substituted here.)
See attached Financial Disclosure Report.
Please complete the attached financial net worth statement in
detail (Add schedules as called for) .
Net Worth Statement Attached.
Have you ever held a position or played a role in a political
campaign? If so, please identify the particulars of the
campaign, including the candidate, dates of the campaign, your
title and responsibilities.
No.
38
205
NEmTORTH
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James G. Carr
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Bonds /Description (Jt. Ownership)
Ohio St Bldg Auth St, 6.50%, issued 9/90 53,863
matures 9/1/S6
Massillon Oh City Sch Dist, 6.50%, 55,193
issued 2/90, matures 12/97
Ohio St Liquor Profits, 6.80%, issued 6/89 27,751
matures 3/1/98
Ohio St Higher Edl 6.70%, issued 6/90 561168
matures 5/1/99
Cincinnati Oh New Pub Hsg Auth, 6.00%, 51,000
issued 6/68, matures 7/1/99
Westerville Oh MNV Pk, 6.20% 54,916
issued 6/91, matures 9/15/99
Ohio St Wtr Dev Auth Rev, 6.00%, 16,417
issued 10/78, matures 9/1/2000
Cleveland Ohio Ser A Rfdg AMBAC 112,564
6.30% issued 5/91, matures 10/1/2001
TOTAL 427,820
Mutual Funds fJT^
Fidelity Advisor Ecfuity 33,537
Fidelity Advisor Income 32,678
Merrill Lynch Int'l Equity Fund Class B 25,714
Merrill Lynch Global Allocation Fund Class B 24,613
Merrill Lynch Developing Capital Markets Fund 10,593
Merrill Lynch Latin America Fund Class B 11,080
ML Capital Fund Class B 33,818
TOTAL 172,033
Mutual Funds (James SEP)
Merrill Lynch Fund for Tomorrow Class B 7,366
Thompson Opportunity Fund Class B 5,313
Merrill Lynch Basic Value Fund Class B 5,292
TOTAL 17,971
207
Mutual Funds (Eileen IRA)
Merrill Lynch Fund for Tomorrow Class B
Thompson Opportunity Fund Class B
TOTAL
CMA Ohio Municipal Money Fund
Real Estate Mortgages Payable
cno^®^"^""-'-^^'^ condominium located ai:
608 Broad Avenue South
Naples, Florida
current balance $ 38,500
3,849
3,095
6,944
11,871
208
NET-WORTH
Maureen Carr
PioviJc : ccniy'.c'.;, cuncr.i TLii.'^ciil r.ct worJi sL<i;mcnl which i'^rrjics Lt ccLiiJ
ai) iiicM (Lncl'JcUns \)is± zccounii. real csuic, securities, trusLs, invcsQmcnLs, £-'■,0 ct>,tr fLninciaJ
holdlnss) tU lizbiiidcs (L'-.cljdinB dcbis, rnonEsscs, loinj, zjd oOi:r fLTijicii] cbligicons) of
youJxL', youi spouse, 2.id oLhcr immidiii: members of you: hcuschold
Cijh en ts-nd l:i^ in buri:
U.S. Covt.-^;=«nl »cr>in: = -
Llr^ x.-,;:Hdii-»di j;tirf-jle
■Uniitid tcciri:ici-tdi yciidjlc
A:=^i:.-.'j t-ii noui rejc'ivibic:
D-Jc torr. idi'Jvti L-d t-it-.ii
r>.'f tom o-*^t.'»
Do-^Vc^Jl
F.cJ cjLlI: o»-ti-tid !C>-.£-;
;tJ f.u;; n-C.-^Jri: I-:-.vi;-:
At.;! L-.d clhc; p-.ns::; J.-vr-^^y
Ci;SviJ:>:-U.'« 1-. ;■-•-- -
CO i:
rc-.i Mitia
co.vrrscE!-'! ix'^a-rms
(_
> T,
Ulit! C- cn^i^'-:
0 CIlL-
LLKsasriLi
67
800
00
KoUj fwyiblc lA tinjc - tirw''cd
KoUj piyi^U td ti.'Oa -c/u cc-.L~t^
>to'-:i piyi^U 13 rtjiiivo
I ^ Ko1:j Fiytbls 13 olijc-;
At^ccunli U^i tOii <5-j3
I Unpijd L'-ior-.t uj;
O^^- lL'-.:^(i Ul i.'vi inUmt
121500 00
CKf— il c-.crjuij and oLS^r Uerj p:v.
CX>,i: d:i<i-;!;rdi::
I Tclj Uii;::!;:!
Kc. Yi'c.-i
80 300
'00
8fl.
laod 00 lj!iiH±rii-t:l2!L:
I 80 boo ;00
CEKXSAL rvFCRM.'.TION
v:}() no
A.'t you dcrciii.-l ir, i,-,y lulu c: l::ti
Hive ycM r<c- li''.j: li.-ir\;r<c-.? '^•°
1
209
Maureen M. Carr
Mutual Funds Mkt. Value
Government Income Securities Inc. 30,837
Thompson Opportunity Fund Class B 24,223
TOTAL 55,060
CMA Money Fund 12,710
210
NET~WORTH
Megan Carr
Provide z cc:-o!c'.c, cuircr.i TL-.i-Tcial ml wonh sLiicmcnl which iLcrr^iics Lt ccHi)
?JJ aisr.15 (Inci'-'ding bi-^i zccoun'^, rti] ts'Ji'c, stcuricics, CrosLs, LivcstiTicnLs, zi\6 oihitr fLi^uiciil
holdings) Ell liabUJDcs ('ir.cl-jdinE dcbu. monsascs, loins, lad oih-r fLTi^nci^l cblisacons) of
yo-dn-clf, youx spouse, End oihcr Ltuntdijii memb:n of your household.
/.SSITS
Zi^>i en tA.1- -i4 i^ bwOti
U.S. Covt.-::ZJer.l lecw.:
Lir.=i tcicHo'u-wld jitirfuOc
U.-jJilid ncirilici--tdi Ki:i;!c
n'j L-.d nout rMeivjo;c:
I>J« £r:r-. ich'jvci i-'d titj-.d;
I\-t tr- c--'i^->
r<u^.^..i
F.cii cJl^ c--td-.i-;
7.1.0 i-.-.^'.-. rr-C.-.-z.^ i:;:;-.v:--.:
CSt, vi!>t-l;.'c i-.:-.:
Tc— 1 /■J.W.J
I m;n TTTT.;
10
!OO0
00
81
200
00
NoUu p^yiilc Lo ti.-LC - iicrec
It'olu pijiblt Is ti.-\fa -CA3 ccM.*id
h'oV;! piyi^U U) rtjiiva
KoUJ paytble l3 ol^t.1
/.:xo'i.-iU Uni bDlj du5
Unpiid lr»i3r-.c Ux
O-Si.- i:.-.,:^ii uj; i.-,5 L-'.;.-:-.',
r.cJ till'.: Kcr^iju pty>i;c-ii£
C>.>^: d;^^-:u:7i.^:
12| 50
(j OC
'T
103
700i
00
7c^ liiliiijti
Kf. v.'c.--:
fl_aa
T:t! liiilliiii ir>i f>:l i-cri
GENTSja rvr C^^M-^TION
I 103 |.700 |00
^;) no
C- bii:: c-c:r.tK:L:
' L:;0 Cliir
A.-: ye.; <?.; fcii.-.! l-. ^-y r.;!'.; c: i::i^
K-.ve ycu OC- U.v_.: li.-irj;<r,? "°
C S : •;-:-
211
Megan A. Carr
Mutual Funds Mkt. Value
Government Income Securities Inc. 19,866
Thompson Opportunity Fund Class B 27,651
Thompson Target Fund 29,974
TOTAL 7744915,255
CBA Money Fund 3,754
212
NETTTORTH
Darrah Carr
Prcvidc 2 co:p.ph:z, currcr.i fuiincijJ ntl wcrOi sLiicmcni which i'^rrji^s Ln cc'^
Eil lisr.Ls (Lncl'jdlng bi/ii icccur.-^, rtil csLiii, stcuridcs, trusu, invcstmcni^, cs,t c'J-.cr fLnyiciiJ
r,c;di-igs) ell lizbllidcs ('Locljclins dcbj, mongascs, loinj, lad oihtr fLnir.ciii cblijiuons) of
youn^lT, your ypo-osc, a.nd other immtdjiii m:mbtrs of your household.
ass:
U.^5ILJTiL;
C:.:h en hir.d S-'i^ in bu-JLJ
U.S. Gov£.':i=>"il ieiV.-;; = -
. Ll.''.c::i ^cJKL':Dci-^4id ichrdjlc
10 Uo-q 00
06
Kolu p*yii>?c lo bAAJs - ii^nrcti
KoLu piyL^ilc l3 b-i.-iki-v.'ucc-jL.*;^
500 00 KoU! piyi^b L> nlidvc
• U.-JJlU/S KC-.ri;ic>--tA! xitdj!;
ArccwT'j t.-.d ncL£i rcciiivjoic:
I>jc frsr-, jcli'Jvcs xr.d LSc*.—
D'j: £r;-~ o,.=.'i
I>oi.':-J-l
r.eJ c:li.; <:--.-^-^ii sc>.-.i:'.=
^tJ eiUL: irc.-'.rilii lEsivi:.;
/.•;.;: I.-C c'.-.e: pif^c::. fr.
C1.--1 M.'.>:-lL'e i.-.:u.-i.-i:
OOm: i^:--
7cU) A.'J^U
1 , Ko:;: psyib'.c t) olicT
>.:^'inU t.-:! bOil d-j
Ur.pijd L'.ia:nt Ixx
ChSc- L-.iiid Ui i.->i i/^U.'r;t
cov7T.'ce;kt u-'^arms
2 000
98
00
y.tij ciU'j rrcrj;ijt5 piyjilc-:^
x-'.tJuJo
C^.trc^ (ncr;i£ej xid olVr lii.-j piv.
0^£; (Ui-:j-;unil
50d 00
^J Li^^L!!
?.-c: Vc:i
I 98 I 500
_op
'00
7c'.i! L':ilIi-_- «.-vJ ncl ---r
I 98 I 500 too
CENTRAL r^TCRM.'i.TlON
: t=ic:si--, co.T.rj;:: cr rji.-i^".2.-
,!.-t :.r/ i;^'j p!c!j-u:? (Adi k
>j£) no
L- biit: c- cc-Sic'ji
l.c:i.'CliL-J
L:i=rj7 no
£ :-rz-<-iz\i-:::Ui^^l.^-zy^^
V.--1C y.i c-fC li'-: ti.-:cvv:~' '"■°
1_J— L
213
Eileen M. Carr, Custodian
Darrah E. Carr
Mutual Funds Mkt. Value
Government Income Securities Inc. 16,973
Thompson Opportunity Fund Class B 33,776
Thompson Target Fund 29,974
TOTAL 80,723
CBA Money Fund 5,754
214
NET-V«ORTH
Caitlin Carr .
Provide 2 complc'.c, cuircr.l ru-.-iciil nal worOi sLiiimcnl which i'xrrJics b dtlii!
rJ\ eisr.is (unci 'J ding birJ: iccounu, rta) tsuie, stcuridcs, trusls, uivcsoncnii, Jjid ol^,c^ fu-.jjicijJ
holdings) eH liabiiiocs (L-.d-jdi/ig ckbu, mongascs, loins, md oihtr finincizj cbbgjcons) of
YOun<L'', your rDoust, ^-^6 oihcr Lnvnciiiii mcmbtrs of you,' hcuschold.
SSITS
lijh en tJ-"i^ ~fi in b^"j-:
U.S. Gcvtriirjcnl icc\;r.-ti--*^i-
Llr^ tMJ^HozLj-tii jchrtlclr
Urj4'.-J K:ciri:ici--iid ycicdj'^
; tnd noui nccivioi::
D-Jt t=n-. jdi'Jrt: Lri tii.-.t:
D-JC fcvm o'J-.i:i
I>;v;;:f-1
F.ti! c:Ll;c c--T.eJ--t-:-
?.tJ c-.U'i irc-^iri: i = ::vj.-.:
AtL:; L-i cL-.er pir-io:;. prrr-:
Ci;Svi;;^-U/c {^sc/;.^-
o:-.:
7oUl A-<i!Lj
covn?-;cENT Liksiimzs
/_s c=d=::^', cc.T.Xk't.' cr r.-i
Cl; Uiic! c- Knti:^
'_;rj C!iL-rs
LLKSaJTIL:
10 !000!
00
83
900100
Nolr.j p*ytb!e Ui b^-Jc - u-r,:/cd
KoLij piyiile to ti.'xi^ -v/u eo^-t^
>iO'j:i piyi^U L3 rt-iavc
1
Nolc: piytb!: 13 olitr:
/.tco'X-iU t.id tUla d'ja
1 Unpiid iftZJC-i Ui
I OJ-,'-- C'.pjjd Ui l.-,i L-^l
F.ti3 ciU'^ n=-^ijM piyii:c-idc
Ch!j::-J c-.r
s.-^(i olV: Ijirj pi
O^r.; cU^^j-lUru2^:
5O0 00
94
ToLJ liiiUJ:;;!
I J.'c'.Vcri
4001 00 1 ■J''^'^ liiiJi:-- l-J ncl --xr,i
CEKXRAJLI>7CR-M.'lT10N
v:!;) no
I ! Kive yc>- r'c; liV_.; t i.-ir-,' ;< c-^ ' " °
215
Eileen M. Carr, Custodian
Caitlin E. Carr
Mutual Funds Mkt. Value
Government Income Securities, Inc. 15,987
Thompson Opportunity Fund Class B 19,593
Thompson Target Fund 43,041
TOTAL 78,621
CBA Money Fund 5,222
216
III, GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some time to participate in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances and
the amount of time devoted to each.
For more than three years I was a volunteer attorney working
with a legal aid program developed and implemented by the
Church Federation of Greater Chicago. This work, which I began
while employed with the law firm, encouraged me to become
employed as a legal aid attorney with the Cc3ok County Legal
Assistance Foundation. After working for about a year in an
office in Englewood on Chicago's South Side, I sat up and
helped to staff an office sponsored by our parish in Rogers
Park, in Northeast Chicago.
While a law professor at the University of Toledo, my
principal areas of responsibility were the Law School's
criminal law clinical programs. In addition to a defender and
prosecutor component, I developed a consumer protection
clinical program. This program enhanced considerably the
ability of the City of Toledo's Consumer Protection Agency to
enforce ordinances and statutes intended to protect consumers.
In addition, I implemented a program through the University's
financial aid office whereby financially needy students were
placed in law-related positions with governmental agencies and
offices in our area. This program enabled many students who
either would not have received financial aid or who would not
have received law-related experience to gain those benefits.
I was one of the founders in 1974 of the Toledo Area Center
for the Prevention of Child Abuse and Neglect, which
ultimately became the Fcimily and Child Abuse Prevention
Center. I served on that board until 1981. In addition, I
served on the Lucas County Mental Health Board, Lucas County
Children Services Board, and Lucas County Childrens Trust
Fund. The time expended on these activities was, I estimate,
about six hours monthly as a general rule, and more on
occasion.
The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a judge
tu hold membership in any organization that invidiously
discriminates on the basis of race, sex, or religion. Do you
currently belong, or have you belonged, to any organization
39
217
which discriminates — through either formal membership
requirements or the practical implementation of membership
policies? If so, list, with dates of membership. What have
you done to try to change these policies?
I belong to no organizations that discriminate.
While a college student, I was a member of a fraternity that
denied admission to a Jewish student on the basis of the
refusal of a single member to vote for his admission. I, along
with all the other members, wanted him to become a member,
argued unsuccessfully against that refusal, and voted in favor
of his admission.
Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts? If
so, did it recommend your nomination? Please describe your
experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to
your nomination and interviews in which you participated) .
The Toledo Bar Association interviewed candidates for the
federal bench in May, 1993, and I was recommended for
appointment .
I was contacted by the Bar Association, and submitted a resume
and was scheduled for an interview. That was the extent of the
Bar Association's process.
My efforts to secure a nomination began in late Summer, 1993,
when I expressed my desire to be nominated and asked the
support of local Democratic political leaders. Thereafter I
informed some attorneys of my interest. In addition, I spoke
with several other persons in Toledo and elsewhere about my
desire to be nominated. When asked by anyone with whom I spoke
as to what they could do, I told them that they could write
letters (without sending copies to me) to our Senators and
otherwise speak favorably about me and my qualifications. As
a result of these efforts and, I believe, my performance as a
Magistrate Judge, I was interviewed by senatorial staff
members and our Senators. After they recommended that I be
nominated, I was interviewed by representatives of the Office
of Policy Development of the Justice Department, investigated
by the F.B.I. , and interviewed by a representative of the
American Bar Association.
40
218
Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
interpreted as asking how you would rule on such case, issue,
or question? If so, please explain fully.
No
Please discuss your views on the following criticism involving
"judicial activism."
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism that
alleges that the judicial branch has usurped many of the
prerogatives of other branches and levels of 'government .
Some of the characteristics of this "judicial activism" have
been said to include;
a. A tendency by the judiciary toward problem-solution
rather than grievance-resolution;
b. A tendency by the judiciary to employ the plaintiff
as a vehicle for the imposition of far-reaching
orders extending to broad classes of individuals;
c. A tendency by the judiciary to impose broad
affirmative duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
e. A tendency by the judiciary to impose itself upon
other institutions in the manner of an
administrator with continuing oversight
responsibilities .
I believe that judicial power should be exercised with
restraint, but that it should also be exercised effectively
when required by the Constitution and laws of the United
States .
A judge must give the parties a full and fair hearing, seek to
ascertain the facts from the evidence, and apply the law as
best it can be discerned. A Judge is to implement the law,
and, in doing so, to refrain from imposing personal
preferences or political or policy choices.
41
219
A judge's primary responsibility is not merely to decide
disputes, but to end them. He or she is most likely to
accomplish that objective by maintaining not only the
appearance but preserving the actuality of impartiality,
trying to make clear to the litigants and their counsel that
their case is as important to him or her as it is to them, and
sending the parties from the courtroom with a sense that they
could receive no more fair or attentive hearing anywhere else.
If the judge is able to do so, the unsuccessful litigant is
more likely to accept the outcome, leave off the distraction
and disruption of litigation, and begin to restore his or her
life to more useful and productive pursuits .
Judicial authority is most appropriately viewed as
restrictive, rather than aggressive. Correction of
constitutional deficiency is generally limited to directing
that such deficiency be remedied by those .responsible for
causing the constitutional problem. The executive and
legislative branches are primarily responsible for
accomplishing compliance with constitutional and legal
obligations. The role of the judiciary is in general
supplementary — to assist by prohibiting, when such is
necessary — but not to usurp or supplant the authority and
responsibility of the other branches of government.
My view that judicial power is to be exercised with restraint
reflects my understanding of the duty of the judiciary under
the Constitution. It reflects as well a perception that
excessive judicial entanglement in the activities of other
institutions impairs not only those institutions, but can
adversely affect the judiciary as well. Such adverse effects
include diversion of scarce judicial resources from other
matters for which the judiciary is responsible and a
diminution of public respect for the judiciary as a neutral
arbiter of disputes.
42
220
I. BIOGRAPHICAL INFORMATION (PUBLIC)
Full name (include any former names used.)
CLARENCE COOPER
Address: List current place of residence and office
address (es) .
Office Address: Georgia Court of Appeals
4 08 State Judicial Building
Atlanta, Georgia 30334
Home Address: 3203 Kingsdale Drive, S.W.
Atlanta, Georgia 30311
Date and place of birth.
May 5, 1942; Decatur (DeKalb County) Georgia
Marital Status (include maiden name of wife, or husband's
name) . List spouse's occupation, employer's name and
business address (es).
Date of Marriage: November 24, 1973
Wife's Maiden Name: Shirley Mae Elder
Occupation: Food Services Coordinator (Nutritionist)
School Nutrition Program
Fulton County School System
5270 Northfield Blvd.
College Park, Georgia 30349
Education: List each college and law school you have
attended, including dates of attendance, degrees
received, and dates degrees were granted.
Harvard University
John F. Kennedy School of Government
Cambridge, Massachusetts
Degree: Master's In Public Administration
Year: June 1978
Massachusetts Institute of Technology
Community Fellow Program
Department of Urban Studies & Planning
Degree: Diploma
Year: June 1978
221
National College of the State Judiciary
School for Judges
Reno, Nevada
Degree: Diploma
Year: 1977 & 1981
Leadership Georgia
Leadership Training Program
Atlanta, Georgia
Degree: Certificate
Year: 1976
Leadership Atlanta
Leadership Training Program
Atlanta, Georgia
Degree: Certificate
Year: 1975
Howard University School of Law
Washington, D.C. 20059
Dates attended: 1964 - 1965
Reason for leaving: Transferred to Emory University to
integrate its law school in 1965
Emory University School of Law
1380 Oxford Rd. , N.E.
Atlanta, Georgia 30322
Degree: Juris Doctor (1967)
Year: 1965 - 1967
Clark College (N/K/A Clark Atlanta University)
James P. Brawley & Fair
Atlanta, Georgia 30314
Degree : B . A . H i story
Year: 1960-1964
Employment Record: List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or
employee since graduation from college.
From 12/9/85 to 12/2/88, I served on the board of
directors of the International Friendship Force, which is
a non-profit organization that promotes peace and good will
among people of the world through cultural exchanges which
allow foreigners and Americans to visit with one another as
hosts and guests in their respective countries.
222
In 1990, I becaine a member of the board of directors of the
Atlanta Convention & Visitors Bureau, a non-profit organiza-
tion whose primary responsibility is to market the City of
Atlanta in such a way that tourists and conventions are
attracted to the City. Because I am a sitting judge, my
participation is limited and I do not participate in any
fundraising activities, nor do I allow my name to be used
in connection with any marketing strategy.
I serve on the board of directors of the Metropolitan
Atlanta Community Foundation, having been appointed to the
board in 1990. This is a philanthropic organization whose
primary objective is to fund community-based programs that
will address various community needs and have a positive
impact on the social and economic conditions of a particular
community. Through small grants, we are able to promote the
general welfare of many neighborhoods and communities.
In 1993, I agreed to serve on the board of directors of the
Georgia Health Decisions, which is a non-profit organization
whose board represents a cross-section of the state on
various health issues. This organization is now in the
process of gathering data on how Georgians view their health
care system and how Georgians prioritize their health needs.
Fulltime Employment;
Georgia Court of Appeals 1990-Present
Fulton Superior Court 1980-1990
The City of Atlanta Municipal Court 1975-1980
Fulton County District Attorney's Office 1968-1975
Atlanta Legal Aid Society 1967-1968
7. Military Service: Have you had any military service? If
so, give particulars, including the dates, branch of
service, rank or rate, serial number and type of discharge
received.
Yes
U.S. Army
1968 to 1970
E-6; Serial # US 53 457 468
Honorable Discharge
8. Honors and Awards; List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
Omega Man of the Year Award, 1991 (Highest award given by
Omega Psi Phi Fraternity)
223
Al Thompson Award for Community Service, 100% Wrong Club,
1989
Thurgood Marshall Award, Outstanding Jurist, NAACP, 1988
Community Fellows Program, M.I.T., 1978
One of the Most Outstanding Men of America, 1974
Bronze Star, U.S. Army, 1970 (for tour of duty in Vietnam)
Certificate (or letter) of Commendation, U.S. Army, 1968
National Defense Service Medal, U.S. Army
Good Conduct Medal, U.S. Army
Vietnam Service Medal, U.S. Army
Vietnam Company Medal, U.S. Army
Man of the Year, Clark College, 1982
Most Studious, Clark College, 1964
Bicentennial Panel, 1987
9. Bar Associations; List all bar associations, legal or
judicial-related committees or conferences of which you are
or have been a member and give the titles and dates of any
offices which you have held in such groups.
Lawyers Club of Atlanta State Bar of Georgia
Federal Bar Association Atlanta Bar Association
National Bar Association Gate City Bar Association
American Bar Association Old Warhorse Lawyer's Club
Supreme Court Commission on
Racial & Ethnic Bias in the
Court System
10. Other Memberships; List all organizations to which you
belong that are active in lobbying before public bodies.
Please list all other organizations to which you belong.
Butler Street Y.M.C.A.
Atlanta Urban League
The Friendship Force International
The Atlanta Branch NAACP (Active in Lobbying)
The Atlanta Convention & Visitors Bureau
Metropolitan Atlanta Community Foundation
Georgia Alliance for Children (Active in Lobbying)
Omega Psi Phi Fraternity
224
Kappa Boule (Sigma Pi Phi Fraternity)
100 Black Men of Atlanta
Georgia Health Decisions
11. Court Admission: List all courts in which you have been
admitted to practice, with dates of admission and lapses if
any such memberships lapsed. Please explain the reason for
any lapse of membership. Give the same information for
administrative bodies which require special admission to
practice.
Superior Courts of Georgia, 1967
State Courts of Georgia, 1967
Georgia Court of Appeals, 1967
Georgia Supreme Court, 1967
U. S. District Court of the Northern District of
Georgia, 1967
12. Published Writings; List the titles, publishers, and dates
of books, articles, reports, or other published material you
have written or edited. Please supply one copy of all
published material not readily available to the Committee.
Also, please supply a copy of all speeches by you on issues
involving constitutional law or legal policy. If there were
press reports about the speech, and they are readily
available to you, please supply them.
"The Judiciary and Its Budget," Massachusetts Institute
of Technology, Community Fellows Program, 1978
(See Attachment lA)
The Atlanta Fulton County Juvenile Justice Commission
Report, 1986 (I chaired the commission and was responsible
for the content of the report) (See Attachment IB)
"A Judge ' s Remarks to New Bar Admittees , " YLS News ,
February 1989, pp. 2 and 3. (See Attachment IC)
Note: Z have not given any speeches or written any articles
involving constitutional law or legal policy.
13. Health: What is the present state of your health? List the
date of your last physical examination.
My health is good.
June, 1993 (date of last physical)
14. Judicial Office: State (chronologically) any judicial
offices you have held, whether such position was elected or
appointed, and a description of the jurisdiction of each
such court.
225
city of Atlanta Municipal Court/ 1975-80 (appointed)
The City Municipal Court of the City of Atlanta has
jurisdiction over all cases involving the violation
of municipal ordinances and also has jurisdiction to hold
preliminary hearings.
Fulton Superior Court/ 1980-1990 (elected)
The Superior Courts of Georgia exercise original, exclusive
and/or concurrent jurisdiction in all civil and criminal
cases granted to them by the constitution and laws of
Georgia. They also exercise the power of a court of equity
and have appellate jurisdiction in some instances.
Georgia Court of Appeals/ 1990-Present
The Court of Appeals is a court of review and exercises
appellate and certiorari jurisdiction in all cases not
reserved to the Supreme Court or conferred on other
courts by law. The decisions of the Court of Appeals
insofar as not in conflict with those of the Supreme
Court shall bind all courts except the Supreme Court
as precedents.
*The following percentages reflect my trial court experience as
well as my appellate court experience:
What percentage of your litigation was:
Civil 70%
Criminal 30%
PERCENTAGE OF CASES PRESIDED OVER
Number Role
Jury Trials 200 (est.) (62.5%) Trial Judge
Bench Trials 120 (est.) (37.5%) Trial Judge
Appeals Court * 1,080 (est.) Appellate Judge
♦Opinions
15. Citations: If you are or have been a judge, provide:
(1) citations for the ten most significant opinions you have
written: (If published, give name of case and citations)
(2) a short summary of and citations for all appellate
opinions where your decisions were reversed or where your
judgment was affirmed with significant criticism of your
substantive or procedural rulings; and (3) citations for
226
significant opinions on federal or state constitutional
issues, together with the citation to appellate court
rulings on such opinions. If any of the opinions listed
were not officially reported, please provide copies of the
opinions.
Note; See Attachment 2A for citations for ten most
significant opinions written and Attachment 2B. a short summary
and citations for opinions reversed or where judgment was
affirmed with significant criticism. As to (3) . I have not,
during my tenure on the Georgia Court of Appeals, handled any
federal or constitutional issues inasmuch as these issues are
reserved exclusively for the Georgia Supreme Court.
16. Public Office; State (chronologically) any public office
you have held, other than judicial offices, including the
terms of service and whether such positions were elected or
appointed. State (chronologically) any unsuccessful
candidacies for elective public office.
I have held no other public office, other than judicial.
In 1973, I was an unsuccessful candidate for seat on the
Fulton County Commission.
17. Legal Career; Note: See explanation below
a. Describe chronologically your law practice and
experience after graduation from law school
including:
1. whether you served as clerk to a judge,
and if so, the name of the judge, the
court, and the dates of the period you
were a clerk;
2. whether you practiced alone, and if so,
the addresses and dates;
3. the dates, names and addresses of law firms
or offices, companies or governmental
agencies with which you have been connected,
and the nature of your connection with each;
EXPLANATION: Chronological description of law practice
experience
After finishing law school, I was actively engaged in
the practice of law between 1967 and 1975, and occupied the
following positions:
Assistant District Attorney
Fulton County (1968 -1975)
227
Fulton County District Attorney's Office
13 6 Pryor Street, S.W.
Atlanta, Georgia 30303
While employed as an assistant district attorney, I was
drafted into the U.S. Army and was subsequently granted a
military leave by the District Attorney to fulfill my
military obligation.
Law Clerk, JAGC Office
U.S. Army (1968-1970)
Department of Army
Washington, D.C.
While serving my country as a GI in Vietnam it was my job to
process claims for and against the U.S. Army.
Attorney
Atlanta Legal Aid Society (1967)
151 Spring Street
Atlanta, Georgia 30335
During my employment with the Atlanta Legal Aid Society,
I represented poor people who could not afford to hire
private counsel to represent them in litigated civil
disputes.
b. 1. What has been the general character of your law
practice, dividing it into periods with dates if
its character has changed over the years?
As an Assistant District Attorney, I was in charge
of two departments: Automobile Condemnations and
Uniform Reciprocal Enforcement of Child Support.
2. Describe your typical former clients, and mention
the areas, if any, in which you have specialized.
I represented poor people as a legal aid attorney.
As an Assistant District Attorney, I represented
the State of Georgia. (Prior to becoming a judge,
I had always worked in the public sector.)
c. 1. Did you appear in court frequently, occasionally,
or not at all? If the frequency of your
appearances in court varied, describe each such
variance, giving dates.
I appeared in court from time-to-time in my
capacity as both a prosecutor (1968-75) and an
attorney for legal aid (1967) representing
indigents.
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228
2. What percentage of these appearances was in:
(a) FEDERAL COURT 1%
(b) STATE COURTS 96%
(c) OTHER COURTS (Juvenile Court) 3%
3. What percentage of your litigation was:
(a) civil; 95%
(b) criminal. 5%
4. State the number of cases in courts of record
you tried to verdict or judgment (rather than
settled) , indicating whether you were sole
counsel, chief counsel, or associate counsel.
CRIMINAL - Approx. 15 cases (sole counsel)
CIVIL - Approx. 15 cases (sole counsel)
5. What percentage of these trials was:
(a) jury; 1%
(b) non-jury. 99%
18. Litigation: Describe the ten most significant litigated
matters which you personally handled. Give the citations,
if the cases were reported, and the docket number and date
if unreported. Give a capsule summary of the substance of
each case. Identify the party or parties whom you
represented; describe in detail the nature of your
participation in the litigation and the final disposition of
the case. Also state as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or
judges before whom the case was litigated; and
(c) The individual name, addresses, and telephone numbers
of co-counsel and of principal counsel for each of the
other parties.
(See Attachment 3)
19. Legal Activities: Describe the most significant legal
activities you have pursued, including significant
litigation which did not progress to trial or legal matters
that did not involve litigation. Describe the nature of
your participation in this question, please omit any
information protected by the attorney-client privilege
(unless the privilege has been waived.)
229
In the case of Charlotte Buckner. individually and as
natural mother of Tameka Buckner. deceased and Kina
Buckner. deceased v. Brown Transport (companion cases:
Fulton Superior Court civil action nos. D-29931,
D-29932, and D-29933) a wrongful death action, I was
instrumental in getting the parties to settle a complicated
case (involving the application of Alabama law) that would
have taken quite a while to try. My involvement in the case
came at the request of counsel, who felt too much was at
stake for both parties. The case settled for four million
dollars.
I currently co-chair the Georgia Supreme Court Commission on
Racial & Ethnic Bias in the Court System. The commission is
now conducting public hearings throughout the state in an
effort to ascertain whether or not the problem (be it actual
or perceptual) is systemic in nature. After the commission
concludes its fact-finding mission, it will submit a written
report to the Supreme Court of Georgia with recommendations.
10
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230
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated receipts
from deferred income arrangements, stock, options,
uncompleted contracts and other future benefits which you
expect to derive from previous business relationships,
professional services, firm memberships, former employers,
clients, or customers. Please describe the arrangements
you have made to be compensated in the future for any
financial or business interest.
While serving as a Superior Court Judge in Fulton County,
I participated in the county's deferred compensation
plan for several years. My participation in the plan
automatically terminated when I was appointed to fill a
vacancy on the Georgia Court of Appeals. I allowed the
sum of money that had been deferred to remain with the
investor until the year 2002, at which time the amount
deferred will be returned to me in periodic monthly
payments over a period of time.
As an Appellate Court Judge, I now particpate in the
State of Georgia's deferred compensation plan. My
participation will terminate when I leave the Georgia Court
of Appeals for the federal bench. At that time I plan
to make the same arrangements with the State investor
as I did with the County investor. That is to say,
I will allow whatever sum has accumulated to remain
with the investor until the year 2002.
I also own shares of stock in the Coca Cola Company,
Toys R Us, Home Depot and CEMAX. Should cases
be assigned to me involving any or all of the above
companies, I shall make it known to the parties an
recuse myself from presiding over such cases. In the
alternative I may decide to sell my stock.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the
categories of litigation and financial arrangements
that are likely to present potential conf licts-of-
interest during your initial service in the position
to which you have been nominated.
Should cases be assigned to my division of court involving
any or all of the aforementioned companies, I shall make
it known to the parties and ask to be recused from the
case. I intend to follow the guidelines of the Code
of Judicial Conduct as it relates to conflicts.
11
231
I can foresee the possibility of one of the companies in
' which I have a financial interest becoming a party to a
ivil lawsuit assigned to my division of court; and if
such were to occur, I would resolve the conflict or
potential conflict in the manner described above.
3. Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during
your service with the court? If so, explain.
No
4. List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more (If you prefer to do so,
copies of the financial disclosure report, required by the
Ethics in Government Act of 1978, may be subtituted here.)
See attached Financial Disclosure Report.
5. Please complete the attached financial net worth statement
in detail (Add schedules as called for)
(See Attachment 4)
6. Have you ever held a position or played a role in a
political campaign? If so, please identify the
particulars of the campaign, including the candidate,
dates of the ampaign, your title and responsibilities.
No, I have never held a position nor played a role in
a political campaign. However, while in law school, I
did distribute campaign literature for Representative
William Alexander, who was seeking re-election to his
House seat in the Georgia General Assembly in 1966.
Mr. Alexander is now a Fulton Superior Court judge.
My role was so minor that I doubt if he will remember.
12
232
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some time to particiapte in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances
and the amount of time devoted to each.
As a judge, I cannot engage in pro bono legal work.
However, I do represent the Georgia Court of Appeals
on the State Bar ' s Pro Bono Committee and have given
speeches encouraging lawyers to become more invovled
in pro bono cases.
I also serve on the Advisory Committee for the
International Friendship Force. The Friendship Force
promotes international exchanges between and among people
from different parts of the world. (One might say that the
Friendship Force serves as an unofficial ambassador for
this country.)
The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a
judge to hold membership in any organization that
invidiously discriminates on the basis of race, sex, or
religion. Do you currently belong, or have you belonged,
to any organization which discriminates — through either
formal membership requirements or the practical imple-
mentation of membership policies? If so, list, with
dates of membership. What have you done to try to
change these policies?
No
Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts?
If so, did it recommend your nomination? Please describe
your experience in the entire judicial selection process,
from beginning to end (including the circumstances which
led to your nomination and interviews in which you
participated) .
Yes
Shortly after President Clinton took office, I was told that
two federal district court judges in Atlanta, Marvin Shoob
and Richard Freeman, had taken Senior Judges status, thereby
creating two judicial vacancies that were to be filled by
presidential appointment.
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233
Because I had been a judge for over 17 years and had always
wanted to become a federal judge, I immediately wrote
Senator Sam Nunn and expressed a desire to fill one of the
two vacancies in the Atlanta area. Senator Nunn, in a
letter to me, stated that a judicial screening committee
would be created to interview applicants who were
interested in federal judgeships and that the screening
committee would contact me. After the committee was
created, the committee, in response to my letter to Senator
Nunn, sent me a questionnaire to be executed and returned to
Senator Nunn and the members of the screening committee.
I executed the questionnaire and mailed copies of my
responses to Senator Nunn and the nine member Judicial
Screening Committee.
Several weeks later, I was contacted by a member of the
judicial screening committee and told when and where to
report for my interview with the committee. I was
interviewed by the nine-member committee for approximately
one hour. My interview was thorough but friendly, and each
member questioned me relative to my qualifications to serve
as a federal district court judge.
A few weeks after my initial interview, I received a
telephone call from an aide in Senator Nunn's office to
schedule a personal confidential interview. My interveiw
with Senator Nunn lasted at least 4 5 minutes to and an hour.
We discussed my qualifications, my views on judicial
activism and a host of other law related issues. At the end
of the interview Senator Nunn told me that I would be
hearing from his office soon.
Several weeks following my interview with Senator Nunn,
he telephoned me at my residence and told me that he had
decided to recommend me for appointment to fill one of
the two vacancies on the federal district court bench in
Atlanta and that he wanted my permission to recommend
my name to the President of the United States. I, of
course, was elated and gladly told him he had my
permission to refer my name to the President.
Since my interview with Senator Nunn, I have undergone
background investigations conducted by the Department of
Justice, the Federal Bureau of Investigation and the
American Bar Association. Besides being personally
interviewed, I have executed questionnaires and submitted
documents pertinent to the information sought by each of
these agencies.
4 . Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
14
234
interpreted as asking how you would rule on such case,
issue, or question? If so, please explain fully.
No
5. Please discuss your views on the following criticism
involving "judicial activism."
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism
that alleges that the judicial branch has usurped many of
the perogatives of other branches and levels of government.
Some of the characteristics of this "judicial activism: have
been said to include:
a. A tendency by the judiciary toward problem solving
rather than grievance-resolution;
b. A tendency by the judiciary to employ the individual
plaintiff as a vehicle for the imposition of far-
reaching orders extended to broad classes of
individuals;
c. A tendency by the judiciary to impose broad,
affirmative duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisictional requirements such as standing and
ripeness; and
e. A tendency by the judiciary to impose itself upon
other institutions int he manner of an administrator
with continuing oversight responsibilities.
If one were to define the role of a judge in
our system of government, one would first
refer to the concept of separation of powers
in the United States Constitution. This
concept not only clearly defines the role of
the judiciary, but it also vividly defines
what roles the other two branches of the
government are to play. The judicial branch
in conjunction with the legislative and
executive branches of our government play a
vital role in the administration of justice.
15
235
Quite simply, a judge must interpret and
apply the laws enacted by the legislative
branch. A judge should not use his/her
judicial position to enact laws since the
enactment of laws is exclusively reserved to
another branch of government. Nor should a
judge execute laws since that function is
exclusively reposed in the executive branch
of government. Where the law is not clear, a
judge should seek to determine the
legislative intent as to the particular area
of the law involved and guard against
imposing his or her own personal view.
Therefore, the concept of separation of
powers as well as our system of checks and
balances clearly delineates the respective
roles of each branch of government. These
roles should not overlap but complement one
another.
In short, it is the judge's responsibility to
ensure not only a fair and impartial hearing,
but also a hearing in a dignified, orderly
manner.
Once a judge clearly understands his/her role
in the administration of justice, he/she must
then focus on the legal issue (s) in cases
before him/her. Before he/she can act in a
judicial manner, he/she must ascertain
whether or not the parties have standing and
that the legal issue is ripe for resolution.
He/she must then ascertain whether or not
there exists precedent to guide him/her in
his/her decision. Once he/she has done this,
he/she must render a decision based upon the
law.
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236
ATTACHMENT 2A
(In response to question 15)
CITATIONS TO TEN MOST SIGNIFICANT CASES
1. Macon Telegraph Publishing Co. v. Tatuin. 208 Ga. App. Ill, 430
S.E.2d 18 (1993)
2. J & A Pipeline Co. v. DeKalb County. 208 Ga. App. 123, 430 S.E.2d
13 (1993)
3. Dorsev V. State. 206 Ga. App. 709, 426 S.E.2d 224 (1992)
4. Weeks V. State. 206 Ga. App. 431, 425 S.E.2d 421 (1992)
5. Circle H Development. Inc. v. Woodstock. 206 Ga. App. 473, 425 S.E.
2d 891 (1992)
6. Restina v. Crawford. 205 Ga. App. 887, 424 S.E. 2d 79 (1992)
7. Shepard v. Federal Land Bank of Columbia. 205 Ga. App. 254, 421
S.E. 2d 763 (1992)
8. Agan v. State. 203 Ga. App. 363, 417 S.E. 2d 156 (1992)
9. In re Jones. 198 Ga. App. 228, 401 S.E. 2d 278 (1990)
10. Mapp V. State. 197 Ga. App. 7, 397 S.E. 2d 476 (1990)
237
ATTAC«MENT 2 B
(In response to question 15)
CASES REVERSED OR AFFIRMED WITH SIGNIFICANT CRITICISM
1. Fountain v. Atlanta Casualty Co. . 200 Ga. App. 643, 409 S.E.2d 239
(1991) , reversed in Atlanta Casualty Co. v. Fountain. 262 Ga. 16, 413
S.E.2d 450 (1992) . ^
The Supreme Court reversed our opinion holding that the insurance
company's declaratory judgment action was inappropriate because the
petition for declaratory judgment did not disclose why the insurance
company needed direction from the court. The Supreme Court reasoned
that the insurance company had adequately demonstrated a need for a
legal judgment that would control its future action.
2. CSX Transportation. Inc. v. Levant. 200 Ga. App. 856, 410 S.E.2d
299 (1991) , reversed in CSX Transportation. Inc. v. Levant. 262 Ga. 313,
417 S.E.2d 320 (1992) .
In this appeal of a personal injury action brought under the
Federal Employer's Liability Act (FELA) , we upheld the jury's award of
one million dollars to the plaintiff. The Supreme Court reversed,
finding that the jury's award was excessive and that the jury must have
been awarding punitive damages which are not allowed in FELA actions.
3. Nelson V. Felton Pearson Co.. 195 Ga. App. 92, 392 S.E.2d 274
(1990) , reversed in Felton Pearson Co. v. Nelson. 260 Ga. 513, 397
S.E.2d 431) (1990) .
The Supreme Court reversed our construction of OCGA 34-9-105 (b) ,
which sets forth the procedure for appealing a decision of the State
238
Board of Worker's Compensation. The Supreme Court construed the statute
differently, noting that its construction was consistent with the policy
of the statute in promoting a speedy resolution of worker's compensation
cases .
4. Baxlev Veneer & Clete Co. v. Maddox. 198 Ga. App. 235, 401 S.E.2d
282 (1990) , reversed in Baxlev Veneer & Clete Co. v. Maddox. 261 Ga.
309, 404 8.E.2d 554 (1991).
On appeal, we held that there was evidence from which a jury
could determine that there had been part performance of an oral contract
such as to remove the contract from the operation of the statute of
frauds. Consequently, we affirmed the trial court's denial of
defendant's motion for directed verdict. The Supreme Court disagreed
and reversed, finding that the evidence was not sufficient to reach the
jury.
5. Bliqe V. State. 205 Ga. App. 133, 421 S.E. 2d 547 (1992), reversed
in Bliqe v. State. 263 Ga. 244, 430 S.E. 2d 761 (1993).
The Supreme Court affirmed our decision which upheld the
defendant's conviction. However, the Supreme Court disapproved our
decision to the extent that it suggested that the State could comment
on the defendant's failure to call an expert witness without laying the
proper foundation.
6. Findley v. Davis et al.. 202 Ga. App. 332, 414 S.E. 2d 317 (1991),
reversed in Davis et al. v. Findley. 262 Ga. 612, 422 S.E. 2d 859 (1992).
239
On appeal, we held that plaintiff's allegation that defendant
charged excessive fees for legal services in violation of the Code of
Professional Responsibility was sufficient to sustain a claim for legal
malpractice. The Supreme Court reversed, finding that a violation of
the Code of Professional Responsibility alone could not establish a
basis for a legal malpractice action.
7. Corim. Inc. v. Belvin et al. . 202 Ga. App. 396, 414 S.E.2d 491
(1991) , reversed in Crossroads Bank of Ga. et al. v. Corim. Inc.. 262
Ga. 364, 418 S.E.Zd 601 (1992).
The Supreme Court reversed our determination that a properly
recorded judgment lien had priority over a perfected purchase money
security interest. The Supreme Court construed two ambiguous statutes
differently, holding that the general scheme of the UCC reflected a
preference for purchase money security interests and that a judgment
lienholder should not be equated with a lien creditor.
8. Hummel v. Gainesville Radiology Group. P. C. . 205 Ga. App. 157, 421
S.E.2d 333 (1992), reversed in Gainesville Radiolocrv Group. P. C. v.
Hummel. 263 Ga. 91, 428 8.E.2d 786 (1993).
The Supreme Court reversed our determination that a grossly
inattentive juror's failure to answer a material question during voir
dire was tantamount to giving an untruthful answer and could not be
considered harmless error. The Supreme Court held that no new trials
will be granted under such circumstances unless the movant can
demonstrate that a juror failed to honestly answer a material question
240
on voir dire and that a correct response would have provided a valid
basis for a challenge for cause.
9. York Rite Bodies of Freemasonry of Savannah v. Bd. of Equalization
of Chatham Countv. 202 Ga. App. 487, 414 S.E.2d 749 (1991), reversed in
York Rite Bodies of FreemaBonry v. Bd. of Equalization of nhatihw
Countv. 261 6a. 558, 408 S.E.2d 699 (1991).
In part of our opinion, we held that the properties of two
masonic organizations were not entitled to the ad valorem tax exemption
allowed for public charities because the properties were used as meeting
places. The Supreme Court reversed holding that the fact that the
properties were used as meeting places did not preclude their use froa
being exclusively devoted to charitable purposes.
10. McDaniel v. Hendricks. 195 Ga. App. 252, 393 S.E.2d 4 (1990),
reversed in McDaniel v. Hendricks. 260 Ga. 857, 401 8.E.2d 260 (1991).
In this medical malpractice action, we held that the plaintiff's
expert affidavit was based on a local standard of care and was
insufficient to withstand the defendant -physician ' s motion for summary
judgment. The Supreme Court reversed, relying on favorable inferences
which could be drawn from the expert affidavit.
241
ATTACHMENT 3
Attachment #3 (Response to Question #18)
TRIAL EXPERIENCE DURING THE TIME I WAS EMPLOYED AS AN ATTORNEY
WITH ATLANTA LEGAL AID AND THE FULTON COUNTY DISTRICT ATTORNEY'S
OFFICE:
NOTE: Since there are no computerized or verifible records
readily available, tbe following cases represent my best
recollection of tbe facts and data surrounding each.
In tbe Interest of James Butler, et al. (Juvenile Delinauentsl ;
In 1967, while employed as a legal services attorney, I
represented three juveniles who had been charged with burglary.
There defense prior to and during the trial was that they were
somewhere else, not necessarily together, on the day of the
burglary. Even though their alibi defense was somewhat weak, the
juvenile court judge had not alternative but to dismiss the case
because the eye witness, a neighbor, who claimed to have seen
them enter the home of the elderly victim could not give a
positive identification at trial. Realizing the weakness in my
clients' alibi defense, I noted that the eye witness, because of
age and infirmity was not absolutely sure of whom she saw and the
time at which she witnessed the incident. My cross examination
of the eye witness regarding the identity of the youngsters she
saw was very effective.
Date of Trial: 1967 (Summer)
Court & Judge: Judge Elmo Holt, Fulton County Juvenile Court
Co-Counsel: Sole Counsel
Defense Counsel: Unknown
Emma Thomas v. Department of Family i Children Services:
In this case, there was a regulation of the Department of Family
and Children Services known as "the substitute father rule." In
essence, this rule required social workers to make random calls
at the home of mothers who were receiving Aid to Dependent
Children benefits and if they found a man in the house then the
man would be declared to be a "substitute father" and the
children's welfare benefits would be automatically terminated.
This rule was first challenged in the Superior Court of Fulton
County and later in the U. S. District Court in the Middle
District of Georgia. We were able to obtain temporary injunctive
relief, thereby temporarily enjoining the enforcement of the
"substitute father rule." Thereafter, the Department of Family
and Children Services was permanently enjoined by a three-judge
panel.
Date of Trial: Unknown
242
Court & Judge ;
Co-Counsel :
Defense Counsel:
Judge Durwood Pye, Fulton Superior Court;
Three Judge Panel Judge Boodle, Judge Griffin
Bell and Judge Elliott
William Skinner (Lead Counsel)
Suite 485 One West Court Sq.
Decatur, Georgia 30030
(404) 377-0466
Unknovm
Clara Jones' Welfare Case; (An Administrative Hearing)
In early 1968, I represented a young woman before the Fulton
County Welfare Board. The young woman's public assistance had
been terminated prior to a hearing on the issues of whether or
not a substitute father had been rooming and boarding with her.
(The woman had four children and they were literally starving.)
I argued that termination of public assistance in the absence of
a hearing was in violation of the "due process clause" of the
U.S. Constitution. Several days after the hearing, the Welfare
Department reinstated public assistance to her.
Date of Trial:
Court & Judge :
Co-Counsel:
1968
Administrative Law Judge
Sole Counsel
Defense Counsel:
Unknown
State v« Robert Tucker; Rape Case
Defendant raped victim in the presence of her two grandchildren,
ages 8 and 9. Although both children testified to facts that
would indicate rape, the jury (which deliberated eight hours)
returned a verdict of not guilty. I was very upset over the fact
that the jury did not believe the two children who were credible
witnesses. The jurors (some of whom were questioned after the
trial) found it difficult to believe that the defendant, who was
young, attractive, well-dressed, would want to rape a woman who
was much older and unattractive. Because of the above two
factors, the jury felt that the sexual encounter was consensual.
This was my first and only capital felony case.
Date of Trial:
Court & Judge:
Co-Counsel:
Defense Counsel:
Two-day trial; occurred in 1971 or 72
Judge Elmo Holt, Fulton Superior Court
Sole Counsel
Attorney Billy L. Spruell
4840 Roswell Road., N.E.
Atlanta, Georgia 30342-2635
(404)257-0777
243
Rachael Kendricks v. Social Security Administration;
While working as an Assistant District Attorney, I obtained
permission to assist my cousin, Rachael Kendricks, now deceased
in preparing her case for argument before the Social Security '
tl :^ Although I do not recall the exact details of her problem
with the Social Security Administration, I do know that she had
been denied certain benefits to which she was entitled by virtue
of her medical condition (poor health) . She won her case and the
benefits denied or terminated were reinstated.
Date of Trial: 1971 (approx.)
Court & Judge: Hearing Officer
Co-Counsel: Co-Counsel Unknown
Defense Counsel: Unknown
State V. Fred Thomas: Habitual Traffic Violator act
Defendant had been found guilty of numerous traffic violations
including several DUI's. Under the above Act, which is designed
to remove habitual traffic offenders from the streets, the
defendant was found to be a habitual violator and his drivina
arauiinnhrrfH-''^rv'*^'^ ^°'' ^^^^ ^^^ i'^^'^^' ^ overcame thl
argument that this Act was expost facto. This conviction was
among the first in Georgia under this Act.
Date of Trial: Unknown
Court & Judge: Presiding Judge, Fulton Superior Court
Co-Counsel: Sole Counsel
Defense Counsel: Unknown
State V. T. Krunkleton: Uniform Reciprocal Enforcement of
BUppOlTt
Petition of support was filed against defendant in a New York
ltTt^/^"' ^°^!^ ^"^ petition here and a hearing on parentage
rtvK K f ^"''^ defendant denied that he was the father of twins
Although twins were born out of wedlock, there was evidence iSich
tituTt"" th^t the defendant provided the mother of tie ?wtns
with a home and paid the entire hospital bill. Later, the
defendant signed the twins' birth certificate. Defendant was
found to be the father. This was a "hotly" contested case
Date of Trial: Unknown
244
Court & Judge: Presiding Judge, Fulton Superior Court
Co-Counsel: Sole Counsel
Defense Counsel: Unknown
State V. Charles McLeod; Automobile Condemnation
Defendant sought to recover his auto, which had been impounded
for a drug violation while his son had possession of it. In
order to substantiate impoundment, I had to connect defendant
with offense by showing that he had knowledge of the illegal use.
Date of Trial: Unknown
Court & Judge: Presiding Judge, Fulton Superior Court
Co-Counsel: Sole Counsel
Defense Counsel: Unknown
Mary Doe's Petition of Support: (URESA Case)
A Michigan woman, who claimed that her ex-husband was a member of
the "Dixie Mafia," filed a petition for child support under the
Uniform Reciprocal Enforcement of Support Act against her former
spouse who had fled to Atlanta, Georgia, to escape his child
support obligation. When the sheriff attempted to serve him with
the petition of support at the address which she had given, the
sheriff discovered that the ex-husband was not a resident at that
address. When told by the Michigan court that the sheriff was
unable to serve her former husband at the address provided, the
woman started making long distance telephone calls to my office,
claiming that we were either afraid to serve him or that we were
being paid to protect him because of his alleged ties to the
"Dixie Mafia". Despite misgivings about our sincere efforts to
serve her ex-husband, she continued to send us information —
including his photo — concerning his whereabouts and various
aliases he might be using. After service was made on him
sometime later, he absconded after being placed under order to
make his child support payments.
Date of Trial: Unknown
Court & Judge: Presiding Judge, Fulton Superior Court
Co-Counsel: Sole Counsel
Defense Counsel: Unknown
In the Interest of: Several Juveniles; (Cannot recall names)
In 1973, while assigned to Fulton Juvenile Court as a prosecutor,
I prosecuted several juveniles who had been charged with
245
shoplifting at a downtown department store. I can't remember
what items they were accused of taking, but the items were
inexpensive and collectively did not exceed $100 in value. The
juveniles, together with their attorney, argued that they had not
left the store at the time they were stopped by the store's
security guard. They claimed that they were going to pay for the
items prior to leaving the store. However, the evidence showed
that the items taken were concealed and stashed under their
clothes and were not openly visible in their hands as they went
about the store. Each boy was found delinquent and each was
placed on supervised probation.
Date of Trial: 1973 (approx.)
Court & Judge: Judge John S. Langford or Judge Tom Dillon
Co-Counsel: Sole Counsel
Defense Counsel: Unknown
246
ATTORNEYS WHO APPEARED BEFORE ME DURING MY TENURE ON THE FULTON
SUPERIOR COURT BENCH: fui^iuN
Hunter S. Allen, Jr.
Allen & Peters
1360 Peachtree St., N.E.
Suite 1700
Atlanta, Georgia 30309-3200
(404) 874-1700
Attorney Marvin S. Arrington
Arrington & Hollowell
191 Peachtree St., N.E.
Suite 3550
Atlanta, Georgia 30303
(404) 658-9900
Attorney James E. Butler, Jr.
Butler, Wooten, Overby & Cheeley
P. O. Box 2766
Columbus, Georgia 30902
(706) 322-1990
Attorney Robert Goldstucker
Nail, Miller, Owens Hocutt & Howard
Suite 200
66 Luckie St. , N. W.
Atlanta, Georgia 30303
(404) 522-0707
Attorney G. Conley Ingram
Alston & Bird
One Atlantic Ctr.
1201 W. Peachtree St., N.E.
Atlanta, Georgia 30309
(404) 881-7000
Attorney Paul Kilpatrick, Jr.
Pope, McGlamry, Kilpatrick & Morrison
720 Broadway
Columbus, Georgia 31901
(706) 324-0050
Attorney Charles T. Lester, Jr.
Sutherland, Asbill & Brennon
999 Peachtree St., N.E.
Suite 2300
Atlanta, Georgia 30309
(404) 853-8000
Attorney Jack Mallard
30 Waddell St.
Marietta, Georgia 30061
(404) 528-3087
247
Attorney Charles Neal Pope
Pope, McGlamry, Kilpatrick & Morrison
72 0 Broadway
Columbus, Georgia 31901
(706) 324-0050
Attorney Daniel S. Reinhardt
Troutman Sanders
600 Peachtree St., N. E.
Suite 5200
Atlanta, Georgia 30308
(404) 885-3206
Attorney Richard Sinkfield
Rogers & Hardin
229 Peachtree St., N.E.
2700 Cain Tower
Atlanta, Georgia 30303-1637
(404) 522-4700
Attorney Bernard Taylor
Alston & Bird
One Atlantic Ctr.
1201 W. Peachtree St.
Atlanta, Georgia 30309
(404) 881-7288
(404) 572-4600
248
ATTACHMENT 4
nNANC3AJL STATEMEhrr
KET WORTH
Provide i complete, current flnindal net worth lutemeni which iterrvKi In dct
alJ t5$f IS (Including b»nk Jccounu. rtil tjuie, jecuritiej, tnjslj, invcstmenu. and other fmiftc.
holdings) all UabUitics (bdudlng debts. tT\ortg»gcj. loans, and other rmincul obUgationi)
yo\in<\!, yout spouse, and other Invnediat* mcmberj of your household.
ASSETS
UMUSULS
~r
Cuh on lu\i ifi^ ifl bw\lu
>s.n?d
33
tioUA p«y»b;c to Unla-i*c»i;»d
16,439
5C
U.S. Covtrmscnt taainin-tii
»che<3ul« US SAVINGS E BOIDS
150
00
Nolu ptjrtblt to b4nla-UAi(cu.*»d
00
Linrd K«uncic4--»(U KhnJult
73^853
30
NffUi pt/tVU to rtlio've*
00
VniltU^ KCiffit!c»"KU Kiedjl*
00
Noui piytbtc to eihcn
m
Atxou/iU tni noi*« rt«'>viWe;
AMOunii i/>4 btUi du«
4.980
ffS
D\»« from iilitirti ifld fritftdi
00
Unpild Itcomt UX
00
Due from oOiui
00.
Ol>>c/ onptjd Ux trti intm <t
CD'
Doubtftil
00
Rtil (itiU mart{i(M piyt^Ic-idd
K>l»dlll*
56,319
88
F.e»l mUU ovntd.-»<]d iche/Jj'.e
122,600
00
Chuie] p>or(tt|e< ind other b'tni piy-
R^ tiuie mort|«|ei roctivitlt
00
Other dcbU-iKnuM:
Autot »J^d other penoo«I profoiy
38.450
00
tetropolitan Life-Loan
^97
30
Cuh viJue-L/« iniu:t;<c«
6^854
86
Howard Barron, C.P.A.
465
00
h ■■
OOier Uitls-i'^ralit;
Georqia Alliance, far
Oiildrfin tpiedq^
600
OC
Deferred CcsiiDensation
89,499
47
Professional and Other
Dues
625
C(
Tax Shelter Annuity
69,062
48
1 IRA(s)
10, 974
17
T0t4j tilbHiliM
32, 527 5'
Net Worfli
153, 941. :
Tout AistU
436,468 67
Tot*l b'tbOidu tM net *^tlS ^
36, 468. (
B CO.vmNCENT UABIUTIES
CENXIUL INF0R.MATION
A5 eodoricT, tcmtku or {uuioior
00
Are kny aiM'j tUtaitit (Add icKed-
Od Uuei or contrwlf
00
A/t you dcfcedvit ir. u.y tuiu o( l(|tj
itdorwt No
Vtfi Otlrn*
00
H«vt you ever uUoV)»nbvp<e>7 No
Provlilon for FedcnJ Incomi Tm
00
0»>xf tpteUl debt
00
249
INVESTMENTS
U.S. Savings Bonds (Series E) $150.00
Government Securities
I. Campaign Account
Bonds $10,428
Mutual Funds 21,340 Listed Securities
II. IRA Accounts: 9,205
2,769 (spouse)
III. Personal Investments Listed Securities
Stock :
Coca Cola - 300 shares 6 42.50/share
CEMAX - 100 shares § 41. 00/ share
Home Depot - 300 shares § 36.25/share
Toys R Us - 300 shares § 35.25/share
First Southern Bank - 100 shares @ 5.00/share
IV. Money Market $800 Listed Securities
V. Bank Accounts
Wachovia
Investment $ 133.59
Checking: 672.08
Citizens Trust Bank
Time Deposit $ 7,779.08
Fulton County School System Credit Union (spouse)
Checking: $13,539
Savings: 198
VI. Value of Real Estate
(Personal Residence): $122,600.00
VII. Deferred Compensation /Tax Shelter
Fulton County Deferred Compensation Plan $56,488.88
State of Georgia Deferred Compensation Plan $33,010.59
Tax Shelter Annuity (Travelers) $69,062.49
VIII. Value of Vehicles
1988 Mazda $6,900
1991 Ford Explorer 13,550
250
IX. Insurance (Cash Value)
Allmerica Financial $3,287.60
Metropolitan Life 3,567.26
(Loan Amt. $2,897.31)
X. Value of Personal Property
Mink Coat $10,000
Jewelry 3,000
Computer & Printer 3,000
Cameras & video Equipment 2 , 000
LIABILITIES
Loans
A. Metropolitan Insurance $2,987.31
B. Mortgage balance First Union Bank
56,319.88
(9/22/93)
C. First Union Bank Equity Account
16,439.50
251
UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY
QUESTIONNAIRE FOR JUDICIAL NOMINEES
I. BIOGRAPHICAL INFORMATION PUBLIC)
1. Full name (include any former names used).
Frank Mays Hull
2. Address: List current place of residence and onice address(es).
Residence: 3452 Woodhaven Road, NW
Atlanta, Georgia 30305
Office: Judge Frank M Hull
Superior Coun of Fulton County
Atlanta Judicial Circuit
T4705 Fulton County Judicial Center
185 Central Avenue, SW
Atlanta, Georgia 30305
3. Date and place of birth.
December 9, 1948 - Augusta. Richmond County, Georgia.
4. Marital Status (include maiden name of wife, or husband's name). List spouse's
occupation, employer's name and business address(es).
Date of marriage:
Spouse:
Occupation:
Employer:
April 16, 1977
Mr. Antonin Aeck ("Tony")
Architect
Lord, Aeck & Sargent. Inc., an architectural firm
400 Colony Square, Suite 300
1201 Peachtree Street, NE
Atlanta, Georgia 30361-6303
252
Education: List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
1973. J.D., cum laude, Emory University School of Law, Atlanta, Georgia; attended
1970-1973
6.
1970, B.A., Randolph-Macon Woman's College, Lynchburg, Virginia; attended 1966-
1968 for freshman and sophomore years, and 1969-1970 for senior year.
University of Reading, Reading, England; attended September 1968-July 1969 as part of
Junior Year Abroad Program of Randolph-Macon Woman's College.
Employment Record: List (by year) all business or professional corporations,
companies, firms, or other enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were connected as an
ofHcer, director, partner, proprietor, or employee since graduation from college.
August 1990-Present:
Judge, Superior Court of Fulton County
Atlanta Judicial Circuit
Atlanta, Georgia
November 1984-
August 1990:
1974-1984:
Judge, State Court of Fulton County
Atlanta, Georgia
From 1974-1980 I was an associate; in 1980
I became the first female partner in a law
firm of 150 anomeys.
Powell. Goldstein, Frazer & Murphy
Atlanta, Georgia
1973-1974:
Sununer 1972:
Summer 1971:
Law Cleric
Judge Elbert P. Tuttle
United States Court of Appeals
for the Fifth Circuit
Atlanta, Georgia
Summer Associate after second year of law school with
firm of Powell, Goldstein, Frazer & Murphy
Atlanta, Georgia
Summer Associate after first year of law school with firm
of Bumside, Dye & Miller
Augusta, Georgia
-2-
253
Military Service: Have you had any military service? If so, give particulars,
including the dates, branch of service, rank or rate, serial number and type of
discharge received.
No.
Honors and Awards: List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the
Committee.
Emory School of Law
1973: J.D. cum laude Emory University School of Law
1973: Order of the Coif (academic honor society)
1973: Wall Street Journal Award (to one senior for overall achievement)
1973: Who's Who in American Colleges and Universities
1973: National Fellow, American Association of University Women
1972-1973: Notes/Comments Editor, Journal of Public law (now Emory Law
Review)
1971: M. P. Laughlin Writing Award (to one freshman)
Bar Associations: List all bar associations, legal or judicial-related committees or
conferences of which you are or have been a member and give the titles and dates
of any offices which you have held in such groups.
1. 1992-Present: State of Georgia Commission on Family Violence, Atlanta,
Georgia (appointed by Governor Zcll Miller)
a) 1992-Present: Chair, Subcommittee to esublish Family Violence Task
Forces in Georgia's 45 judicial circuits
2. 1973-Present: Member, Sute Bar of Georgia. Atlanu, Georgia
a) 1991-Present: Member. Sute Bar of Georgia Bench & Bar Committee (to
improve interaction between Bench and Bar)
b) 1990-Present: Member. Sute Bar of Georgia Correctional Facilities and
Services Conunittee (promotes/oversees "BASICS" program offering
employment workshops for inmates prior to release)
c) 1988-1991: Member. Sute Bar of Georgia Conunittee on Women and
Minorities in the Profession
d) 1 99 1 - 1 993 : Executive Committee , Georgia Sute-Federal Judicial Council,
Atlanu, Georgia
3. 1990-Present: Member, Council of Superior Court Judges, Sute of Georgia,
Atlanu, Georgia
a) 1990-1993: Chair. Gender/Racial/Ethnic Fairness Committee
b) 1991-1993: Member, Uniform Rules Committee
254
4. 1984-1990: Member, Council of State Coun Judges, State of Georgia, Atlanta,
Georgia
a) 1987-1990: Member, Uniform Rules Comminee
b) 1987-1990: Member, Program Committee
5. 1974-Present: Member, American Bar Association, Chicago, Illinois
a) 1978-1985: Vice-Chairman, ABA's Fidelity and Surety Law Committee
(fidelity/surety bonds for contractors/financial institutions)
b) 1979-1982: Financial Secretary and Long Range Planning Committee,
ABA's Tort and Insurance Practice Section
c) 1981-1985: Editorial Staff, The Construction Lawyer, published by
ABA's Forum Committee on Construction Industry
d) 1983-1985: Chairman, Contract Documents Division, ABA's Forum
Comminee on Construction Industry
6. 1992-Present: Fellow, American Bar Foundation, Chicago, Illinois
7. 1974-Present: Member, Atlanta Bar Association, Atlanta, Georgia
a) 1977-1979: Board of Directors, Atlanta Council of Younger Lawyers
b) 1977-1979: Chairman, ACYL Northern District of Georgia Casenotes
Committee (prepared summary of unreported decisions in United States
District Coun for Northern District of Georgia)
8. 1984-Present: Member, Gate City Bar Association, South Fulton Bar
Association. North Fulton Bar Association, and Georgia Association of Black
Women Attorneys, Atlanta, Georgia
9. 1985-Presem: Member, National Center for Sute Courts, Williamsburg, Virginia
10. 1985-Present: Member, American Judicature Society, Chicago, Illinois
a) 1990- Present: National Board of Directors
11. 1988-Present: Member, National Association of Women Judges, Washington,
DC.
12. 1975-Present: Member, Georgia Association of Women Lawyers, Atlanta,
Georgia
13. 1988-1991: Member, Sute of Georgia Commission on Gender Bias in Judicial
System, Atlanta. Georgia (appointed by Chief Justice of Georgia Supreme Court)
a) 1988-1991: Chair, Domestic Violence Subcommittee
14. 1988-1991 : Board of Directors, Atlanu Volunteer Lawyers Foundation, Atlanta,
Georgia (recruits pro bono attorneys and provides pro bono representation to low
income clients; funded by court filing fee)
15. 1984-Present: Member. Lawyers Club of Atlanta, Atlanta. Georgia
255
16. 1991-Present: Member, Bleckley American Inn of Coun, Atlanta, Georgia
a) 1992-Present: Executive Comminee
17. 1991: Visiting Judge. Georgia Supreme Court, for one case where sitting
Justice had to recuse. See York Rite Bodies of Freemasonry of Savannah-
Georgia, et al. V Board of Equalization of Chatham County. 261 Ga. 558, 408
S.E.2d 699 (1991).
10. Other Memberships: List all organizations to which you belong that are active in
lobbying before public bodies. Please list all other organizations to which you
belong.
I do not belong to any organizations that are active in lobbying before public bodies.
All other organizations to which I belong are:
1986-Present Member, Leadership Atlanta. Inc., Atlanta. Georgia
1992-1993 Selection Committee for Applicants for 1993-1994 Class
1988-1989 Co-Chair for Criminal Justice Program Committee
1986-1987 Class of Leadership Atlanu
1976-1979 Board of Directors. Metro Atlanta Mediation Center, Inc. (operates The
Bridge, a non-profit family counseling center)
1979-Present Member, Cathedral of St. Philip. Atlanta, Georgia
1983-1991 Sunday School teacher
1990-1992 Outreach Committee (awards grants)
1988-1991 Sunday School teacher in outreach program at Emmaus
House. Capitol Avenue, Atlanta, Georgia
1985-1989 Assistant Den Leader, Den 5, Troop 74, Boy Scouts
of America troop at the Cathedral
Present member: Atlanta Women's Network, Speech School Guild. Atlanta Bounical
Garden, High Museum of Art, Randolph-Macon Woman's College Alumni Association-
Atlanta Chapter. (I do not recall the exact dates I joined each organization but have been
a member for over five years.)
11. Court Admission: List all courts in which you have been admitted to practice, with
dates of admission and lapses if any such memberships lapsed. Please explain the
reason for any lapse of memberships. Give the same information for administrative
bodies which require special admission to practice.
1973 United States Court of Appeals for the Fifth Circuit
1974 United Sutes District Court for Northern District of Georgia, Georgia Supreme
Court. Georgia Coun of Appeals, and Superior Court of Fulton County
1977 United States Supreme Court
1982 United States Coun of Appeals for the Eleventh Circuit
-5-
256
12. Published Writings: List the titles, publishers, and dates of books, articles, reports,
or other published material you have written or edited. Please supply one copy of
all published material not readily available to the Committee. Also, please supply
a copy of all speeches by you on issues involving constitutional law or legal policy.
If there were press reports about the speech, and they are readily available to you,
please supply them.
"Pyramid Marketing Plans and Consumer Protection: State and Federal Regulations",
21 Journal of Public Law 445 (1972) (now Emory Law Review)
"Civil Procedure-Application of Long-Arm Statute to Foreign Corporation", 8 Georgia
State Bar Journal 414 (1972)
"Bankruptcy of Principal: Reclamation and Other Common Problems Facing the
Principal and Its Surety", 12 Forum 200 (1976) (Topic of paper for TIPS at ABA's 1976
Annual Meeting in Atlanta; The Forum is a legal periodical published by the ABA's Tort
and Insurance Practice Section - "TIPS")
"Surety's Liability for Attorneys' Fees and Coun Costs Under Fidelity Bonds", 14
Forum 634 (1979) (Topic of paper and speech for TIPS at ABA's 1978 Annual Meeting
in New York)
"The ABC's of Unidentifiable Employee Coverage", 15 Forum 948 (1980) (Topic of
paper and speech for TIPS at ABA's Mid-Winter Meeting in New York)
13. Health: What is the present state of your health?
Excellent.
List the date of your last physical examination.
May 18, 1993.
14. Judicial Office: State (chronologically) any judicial unices you have held, whether
such position was elected or appointed, and a description of the jurisdiction of each
such court.
Current judicial office: August 1990-Present
Judge, Superior Court of Fulton County
Atlanu Judicial Circuit
Atlanu. Georgia
Governor Joe Frank Harris appointed me to this Court in 1990. I was re-elected in
November, 1992 for a four-year term (1993-1997). This is a general jurisdiction State
trial court with jurisdiction over felony criminal cases, all civil cases both at law and in
equity, and all divorce cases. There is no limitation on the jurisdiction.
257
Preyjous judicial office: November 1984-August 1990:
Judge, State Coun of Fulton County
Atlanta, Georgia
Governor Joe Frank Harris appointed me to this Court in 1984 I was re-elected in 1986
and again in 1990. This is a limited jurisdiction trial court with jurisdiction over
misdemeanor criminal cases and all civil cases except divorces, claims in equity, and
cases involving title to real property.
In summary, 1 have been re-elected as a State trial judge three times (in 1986, 1990, and
1992), and have never been an unsuccessful candidate in a judicial election.
For nine years as a trial judge on two trial courts, I have handled (a) over 2,500 felony
criminal cases on Superior Court and over 5,000 misdemeanor criminal cases on State
Court, and (b) over 3,000 civil cases in Superior and Slate Courts. I have presided over
at least 200 jurj' trials. 300 bench trials, and thousands of criminal pleas and non-jury
motions in civil and criminal cases.
15. Citations: If you are or have been a judge, provide:
(1) citations for the ten most significant opinions you have written; (2) a short
summary of and citations for all appellate opinions where your decisions wen
reversed or where your judgment was affirmed with significant criticism of your
substantive or procedural rulings; and (3) citations for significant opinions on federal
or state constitutional issues, together with the citation to appellate court on such
opinions; If any of the opinions listed were not officially reported, please provide
copies of the opinions.
(1) Copies and citations of ten significant opinions are attached as Exhibit 2.
(2) To the best of my knowledge, no appellate opinions have affirmed my decisions
with significant criticism. A summary of appellate opinions where my decisions
were reversed is attached in Exhibit 3.
(3) Ciutions for significant opinions on federal or state constitutional issues are
included and identified in Exhibit 2.
16. Public Office: State (chronologically) any public offices you have held, other than
judicial ofTices, including the terms of service and whether such positions were
elected or appointed. State (chronologically) any unsuccessful candidacies for
elective public office.
I have not held any elected public office other than the judicial offices outlined in
question 14 above. 1 have been appointed to several State Commissions:
1992-Present: State of Georgia Commission on Family Violence, Atlanta,
Georgia (appointed by Governor Zeli Miller)
a) 1992-Present: Chair, Subcomminee to establish Family Violence Task
. . Forces in Georgia's 45 judicial circuits
-7-
258
1988-1991: Member, State of Georgia Commission on Gender Bias in Judicial
System, Atlanta, Georgia (appointed by Chief Justice of Georgia Supreme Court)
a) 1988-1991: Chair, Domestic Violence Subcommittee
17. Leyal Career:
a. Describe chronologically your law practice and experience after graduation
from law school including:
1. whether you served as clerk to a judge, and if so, the name of the
judge, the court, and the dates of the period you were a clerk;
1973-1974 Law Cleric
Judge Elbert P. Tuttle
United States Court of Appeals for the Fifth Circuit
Atlanta, Georgia 30303
2. whether you practiced alone, and if so, the addresses and dates;
I have not practiced alone.
3. the dates, names and addresses of law firms or offices, companies or
governmental agencies with which you have been connected, and the
nature of your connection with each;
1974-1984 From 1974-1980 I was an associate; in 1980 I became the
first female panner in a law firm of ISO attorneys.
Powell, Goldstein, Frazer & Murphy
Sixteenth Floor
191 Peachtree Street, NE
Atlanta. Georgia 30303
(404) 572-6600
Sununer 1972 Summer Associate after second year of law school
Powell, Goldstein, Frazer & Murphy
Sixteenth Floor
191 Peachtree Street, NE
Atlanta, Georgia 30303
(404) 572-6600
Summer 1971 Sununer Associate after first year of law school
Bumside, Dye & Miller
Augusta, Georgia
(This law firm no longer exists.)
259
b. 1. What has been the general character of your law practice, dividing it
into period with dates if its character has changed over the years?
In my prior law practice for 10 years with Powell. Goldstein. Frazer &
Murphy. I had a general trial practice and worked on over 200 cases in
federal and state courts, which involved a broad range of areas such as-
contracts, banking, loans, civil rights, all areas of the UCC, construction
law, federal copyright infringement, insurance, real estate, suret> and
guaranty relationships, employee dishonesty, creditors' rights, employment
and age discrimination, materialmen's liens, subrogation, fidelity bonds,
performance and payment bonds, professional malpractice, receiverships,
personal injury, divorce, contracts, torts, equity, executor/administrator
bonds, and fiduciary relationships.
2. Describe your typical former clients, and mention the areas, if any, in
which you have specialized.
I specialized in civil litigation and represented a broad spectrum of clients
in a wide range of cases. Here are a few examples:
1) In both state and federal courts, I represented numerous
businesses, banks, commercial lenders, and bank customers in
cases involving real esute transactions, the Uniform Commercial
Code, loans, and/or other banking transactiqas.
2) A federally insured state bank in Georgia failed in 1976. I
represented the Federal Deposit Insurance Corporation in at least
24 lawsuits in federal and sute courts regarding die receivership
and the assets/liabilities of that insolvent state bank.
3) With funding from the National Education Association, I
represented in federal courts (a) plaintiff teachers in actions against
local school boards for racial discrimination in faculty employment
and (b) a plaintiff teacher in an action against a local school board
for age discrimination in faculty employment.
4) A significant pan of my law practice involved construction
contract litigation and arbitration. I represented owners,
contractors, subcontractors, and suret>' companies in numerous
construction contract claims, litigation, and arbitration, especially
involving performance and payment bonds.
5) In federal court. I handled at least a dozen copyright infringement
cases for Broadcast Music, Inc. as a plaintiff.
-9-
260
6) Insurance companies issue fidelity bonds to banks and businesses
insuring for losses caused by employee dishonesty. I represented
numerous insured businesses and insurance companies in
prosecuting and defeixling commercial fidelity bond cases.
c. 1. Did you appear in court frequently, occasionally, or not at all? If the
frequency of your appearances in court varied, describe each such
variance, giving dates.
I appeared in court frequently.
2. What percentage of these appearances was in:
(a) federal courts: 50% in law practice
(b) state courts of record: 50% in law practice
(c) other courts: not applicable
3. What percentage of your litigation was:
(a) civil: 100% in law practice
(b) criminal: 1 handled several pro bono criminal cases in law
practice.
4. State the number of cases in courts of record you tried to verdict or
judgment (rather than settled), indicating whether you were sole
counsel, chief counsel, or associate counsel.
Approximately fifteen. In the first three years of law practice, 1 was
generally associate counsel under the supervision of a partner. In the last
seven years of law practice, I generally was lead counsel on the cases I
handled.
5. What percentage of these trials was:
(a) jury: 15%
(b) non-jury: 85%
18. Litigation: Describe the ten most significant litigated matters which you personally
handled. Give the citations, if the cases were reported, and the docket number and
date if unreported. Give a capsule summary of the substance of each case. Identify
the party or parties whom you represented; describe in detail the nature of your
participation in the litigation and the final disposition of the case. Also state as to
each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or judges before whom the
case was litigated; and
(c) the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties.
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261
The following is a summary of ten significant cases which I personally handled whOe
with Powell, Goldstein, Frazer & Murphy.
While other attorneys at this firm may be listed in the pleadings, I was the attorney whh
primary responsibility for the work in these cases. I personally handled all ooun
appearances in all of the cases listed below, whether at trial, at oral argument, on appeal,
or at any court hearings on motions. I also personally drafted the pleadings and briefe
filed in these cases and personally conducted the discovery in these cases.
1.
Fred E. Rizk. et al. v. James H. Jones, and others as trustees of Firet
Commerce Realty Investors. 148 Ga. App. 473, 251 S.E.2d 360 (1978), afTd.
243 Ga. 545, 255 S.E.2d 19 (1979)
Plaintiff borrowers sued my lender client, First Commerce Realty Invesnrs
("FCRI"). a Louisiana REIT, for $2 million in damages for breach <rf a
development loan for 300 acres in Gwinnett County, Georgia. My client FCRI
counterclaimed for over $3 million in already past due debt under the i»m«i
acquisition loan.
The trial court granted summary judgment to my client FCRI on its counterclasms
against the plaintiff borrowers, which was affirmed on direct appeal. After the
appeal, the main Complaint by the plaintiff was still left to be tried. The case
was senled for an immediate payment of $2.5 million from the plaintiff bornnven
to my client FCRI.
Trial Court:
Judge Reid Merritt*
Superior Court of Gwinnen County
Lawrenceville, Georgia
♦Judge Merrin is now in private
practice:
PO Box 686
368 South Perry Street
Lawrenceville, (jeorgia 30245
(404) %3-9933
Counsel for opposing parties:
Counsel for plaintiffs in trial court:
Mr. Robert W. Beynart
Mr. David K. Whatley
Smith, Cohen, Ringel, Kohier & Manin*
Atlanta, Georgia
Appellate Court:
The Honorable Julian Webb*»
Georgia Coun of Appeals
Atlanta, Georgia
**Judge Webb is now in private
practice:
118 West Second Street
P.O. Box 277
Donalsonville, Georgia 31745-0277
(912) 524-2456
-11-
262
*Both attorneys are now with different law firms:
Mr. Robert W. Beynart
Smith, Gambrell & Russell
Suite 3100 Promenade II
1230 Peachtree Street. N.E.
Atlanta, Georgia 30309-3592
(404) 815-3500
Counsel for plaintiffs' appeal:
Mr. A. Felton Jenkins, Jr.
King & Spalding
42nd Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1740
(404) 572-4600
Mr. David K. Whatley
Fortson & White
3(X) Atlanta Financial Center
3333 Peachtree Road, N.E.
Atlanta, Georgia 30326-1042
(404) 239-1900
2. Receivership action of In re Hamilton Bank and Trust Company. Civil Action
No. C-24035 (Fulton Superior Ct., 1976-79).
The Department of Banking and Finance of the State of Georgia took possession
of the insolvent state bank and petitioned the court to appoint the FDIC as
receiver. 1 represented the FDIC as receiver. When FDIC is appointed receiver
of a bank, it has two options: (1) to sell the assets/liabilities of the failed bank
to an ongoing bank or (2) to proceed with a straight liquidation. This closed sute
bank's liabilities (i c, customer deposits) far exceeded its assets (i.e., loan
portfolio).
The FDIC as receiver (1) sold for over $22 million in cash the loans in default
to FDIC in its corporate capacity as insurer and (2) sold for over $33 million to
the National Bank of Georgia the liabilities (i.e., customer deposits) with an
offsetting amount of good assets (i.e., good loans plus the $22 million cash from
FDIC in its corporate capacity as insurer). This allowed the ongoing bank to take
over the customer deposits without any interruption in service and with customers
receiving 100% of their deposits. The FDIC in its corporate capacity as insurer
then proceeded to collect the loans in default in an attempt to recoup its cash
payment of over $22 million made to faciliute the sale of liabilities to the
ongoing bank.
I also represented the FDIC as receiver in the receiver's ongoing reports to the
trial court on the sutus and resolution of the receivership.
Court:
Judge John S Langford
Superior Court of Fulton County
Atlanta Judicial Circuit
185 Central Avenue. S.W.
Atlanta, Georgia 30303
(404) 730-4305
Counsel for opposing party:
The insolvent stale bank did not
employ counsel to oppose the
receivership. Since all depositors
received 100% of their deposits, they
did not oppose the actions of the
FDIC as receiver.
-12-
263
I also represented the FDIC in its corporate capacity as insurer in at least 24
lawsuits in state and federal courts to collect the various delinquent loans
purchased from FDIC as receiver of the state bank. For example, see FDIC v.
Jones. 161 Ga. App. 867, 291 S.E.2d 70 (1982); FDIC v. West. 149 Ga. App.
342, 254 S.E.2d 392; affid- 244 Ga 396, 260 S.E.2d 89 (1979).
Federal Deposit Insurance Corporation v. Fidelity and Deposit Companv of
Maryland v. Thomas M. Hutcheson. et al.. Civil Action File No. C77-1762A
(U.S.D.Ct., N.D.Ga. 1977-79)
FDIC in its corporate capacity as insurer sued to collect money owed under a
fidelity bond for losses caused by dishonesty of employees of a closed state bank.
The FDIC in its corporate capacity as insurer purchased the rights of the closed
state bank under the fidelit)' bond. The case involved myriad issues, such as the
authorization of the dual capacities of the FDIC under federal statutes and
decisional law. especially 12 USCA § 1823, subject matter jurisdiction issues
under 12 USCA § 1819 and 28 USCA § 1345; whether the superior equities
doctrine and other law precluded third party complaint against the directors of the
closed state bank and numerous other discovery and procedural issues. The case
was ultimately settled.
Court: Counsel for opposing party:
Senior Judge Albert J. Henderson* Mr. John W Hinchey
United States Court of Appeals Phillips, Hinchey & Reid**
for the Eleventh Circuit Atlanu, Georgia
56 Forsyth Street, N W.
Atlanta, Georgia 30303
(404) 331-6816
*Judge Henderson presided over this **Mr. Hinchey is now with
case as a Judge on the United States another law firm:
District Court for the Northern Mr. John W. Hinchey
District of Georgia. King & Spalding
42nd Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1740
(404) 572-4600
Hllson. et al. v. Washington County Board of Education, et al.. Civil Action
No. 2449 (L.S.D.Ct.,M.D.Ga. 1977-79).
With funding from the National Education Association, I represented the plaintiff
teachers in this class action against this school board for racial discrimination in
faculty employment. The class was certified, and the liability issue was tried
before Judge Owens. After my clients prevailed on the liability issue, the school
board reinstated the teachers but still refused to pay damages and back pay
requested by certain teachers. I then began trying the individual teacher's damage
claims. After recovering damages in the first teacher" s damage trial, the school
-13-
264
board settled the remaining damage claims,
recovered by my client.
Half of my attomeys' fees were also
Court:
Chief Judge Wilbur D. Owens.
United States District Court
Middle District of Georgia
Macon Division
P. O. Box 65
Macon, Georgia 31202
(912) 752-3491
Counsel for opposing parties:
Jr. The Honorable Thomas A. Hutcheson*
State Court of Washington County
P.O. Box 621
Sandersville. Georgia 31082-0621
(912)552-6911
"Judge Hutcheson handled this case
while in private practice.
The Honorable Denmark Groover. Jr.
Groover & Childs
P. O. Box 898
Macon. Georgia 31202-0898
(912) 745^712
5. Thelma Davis v. Griffin Spalding County Board of Education. 445 F.Supp.
1048 (U.S.D.Ct.,N.D.Ga. 1975)
With funding from the National Education Association. I represented the plaintiff
Thelma Davis in her claim against the local school board for age discrimination
in faculty employment and for impermissibly enacting a 65 mandatory retirement
age when the mandatory sute retirement system allowed teachers to retire as late
as age 70. Plaintiff Davis was employed continuously as a classroom teacher for
21 years but was not rehired solely because of her age. The sute law provided
for mandatory retirement of public school teachers at age 70. but the local school
board, after allowing plaintiff to teach for three years past age 65, passed a new
mandatory retiremeni at age 65. Plaintiff had criticized the defendant's school
policies, worked for the defeat of a local school bond referendum as unnecessary,
and worked with the NEA to change teachers' contracts.
The trial court granted my client's motion for summary judgment based on the
pendent state law claim that the local school board was not authorized to enact the
mandatory retirement age of 65 because the state's public policy prevailed over
the local school board's right to set a lower mandatory retirement age. The trial
court also awarded back pay to my client, plaintiff Thelma Davis, fuiding the
defendant local school board had not timely raised the defense of lack of capacity
to be sued, that the consent to be sued waived governmental immunity, and that
the local school board had sufTicient local resources to pay a judgment for back
pay without transgressmg state law authorizing use of state funds for educational
purposes only.
-14-
265
Court
Senior Judge Alben J. Henderson*
United States Court of Appeals
for the Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta. Georgia 30303
(404) 331-6816
Counsel for opposing partv:
Mr. Dow N. Kirkpatrick, II
Alston & Bird
One Atlantic Center
1201 W. Peachtree Street
Atlanta. Georgia 30309-3424
(404) 881-7346
6.
*Judge Henderson presided over this
case as a Judge on the United States
District Court for the Northern
District of Georgia.
The Travelers Indemnity Company v. A. M. Pullen & Co.. 161 Ga. App.
784, 289 S.E.2d 792 (1982) (cert, denied)
I represented the plaintiff Travelers, which issued surety bonds for a construction
contractor based on financial statements cenified by defendant Pullen, an
accounting firm The contractor became bankrupt and defaulted on various
projects My client Travelers sued Pullen for over $30 million in damages for
negligence, breach of contract and fraud in preparation and cenification of the
financial statements The trial coun granted summary judgment to defendant
Pullen. finding that plaintiff Travelers was a third party not in privity and
Travelers could not sue Pullen.
As a matter of law the appellate court reversed and held that my client Travelers
as a third party could sue Pullen. After 1 obtained the reversal on appeal and
Travelers' right to sue, my client Travelers received a substantial settlement from
defendant Pullen which is protected by a non-disclosure agreement.
Trial Court:
Chief Judge William W Daniel
Superior Coun of Fulton County
Atlanta Judicial Circuit
185 Central Avenue, S.W.
Atlanu, Georgia 30303
(404) 730-4318
Appellate Court:
The Honorable A. W. Birdsong, Jr.
Georgia Court of Appeals
412 State Judicial Building
40 Capitol Square, S.W.
Atlanta, Georgia 30334
(404) 656-3454
Counsel for opposing party:
Mr. George B. Haley, Jr.
Mr. Richard R. Cheatham
Kilpatrick & Cody
1100 Peachtree Street
Suite 2800
Atlanta. Georgia 30309-4530
(404) 815-6370
-15-
266
Phoenix Insurance Co.. et al. v. Aetna Casualty & Surety Co.. 144 Ga. App.
555, 241 S.E.2d 445 (1978).
I represented the defendant Aetna in a complicated insurance, reinsurance and
fidelity bond dispute. The trial court granted summary judgment against my
client Aetna for over $1 million. I handled the appeal and that summary
judgment was reversed in toto in 1978. The case was ultimately dismissed
against Aetna. When the case was refiled by the same plaintiff in 1983, I moved
for summary judgment on behalf of Aetna based on certain statute of limitation
defejises, and the plaintiff voluntarily dismissed its case with prejudice in July
1984.
Trial Court:
Judge Claude Shaw (deceased)
Superior Coun of Fulton County
Atlanta Judicial Circuit
Appellate Court:
The Honorable A. W. Birdsong, Jr.
Georgia Court of Appeals
412 Sute Judicial Building
40 Capitol Avenue, S.W.
Atlanta. Georgia 30334
(404) 656-3454
Counsel for opposing party:
The Honorable Sam F. Lowe. Jr. (deceased)
Atlanta, Georgia
Presidential Ltd. v. Highlands Insurance Co. v. Beale Roofing and GAF
Corooration, Civil Action File No. C77-120A (U.S.D.Ct.,N.D.Ga. 1977-79).
The plaintiff Presidential Ltd. entered into a construction contract with PC.
Dinkins for construction of a hotel. The defendant Highlands Insurance
Company, as surety, issued performance and payment bonds on behalf of the
contractor Dinkins who later defaulted under his construction contract. I
represented the plaintiff Presidential Ltd. in this lawsuit to collect over $800,000
under the bonds due to Dinkins' breach of his construction contract.
My client's damages resulted from myriad construction defects, unpaid
materialmen/ subcontractors, and delay in completion of the hotel The defendant
surety filed a third party complaint against the roof subcontractor and the
manufacturer of the roofing materials. My client plaintiff Presidential Ltd.
recovered $640,000 in settlement after extensive litigation.
Court:
Judge Robert L. Vining, Jr.
United States District Court
Northern District of Georgia
P. O Box 6226
Rome, Georgia 30162-6226
(706) 291-5671
Counsel for opposing party:
For defendant Highlands Insurance Company
Mr John W Hinchey*
Mr. Albert E. Phillips**
Phillips, Hinchey & Reid
Atlanta, Georgia
-16-
267
Both attornevs are now with different law firms:
•Mr. John W Hinchey
King & Spalding
42nd Floor
191 Peachtree Street. N E.
AUanu, Georgia 30303-1740
(404) 572-4600
**Mr. Albert E. Phillips
Phillips & Reid
1200 Harris Tower
233 Peachtree Street. N.E.
Atlanta, Georgia 30303
(404) 659-6000
For defendant GAF Corporation For defendant Beale Roofing Company
Mr. John A. Chandler
Sutherland, Asbill & Brennan
999 Peachtree Street, N.E.
Suite 2300
Atlanu. Georgia 30309-3964
(404) 853-8029
Mr. Stephen M. Phillips
Hendrick, Spanos & Phillips, P.C.
1410 Peachtree Center Tower
230 Peachtree Street. N.E.
Atlanta, Georgia 30303
(404) 522-1410
The Fidelity & Guaranty Company of New York v. The First National Bank
of Atlanta. Civil Action No. C80-1416A (U.S.D.Ct.N.D.Ga. 1980-82)
Aetna Casualty & Surety Company hired me to defend Aetna's insured. The First
National Bank of Atlanta, which had paid over $1 million in forged checks An
employee of General Foods Corporation forged checks drawn on General Foods'
checking account at the First National Bank of Atlanta General Foods recovered
its losses from its surety. The Fidelity & Guaranty Company of New York, under
a fidelity bond covering employee dishonesty. General Foods assigned to the
surety all claims against third parties based on the forged checks. Thereafter, the
surety. Fidelity <t Guaranty Company of New York, sued the First National Bank
of Atlanta for paying the checks bearing a forged drawer signature.
The bank's defenses were, inter alia. (1) that General Foods' negligence
substantially contributed to the making of the forged checks, thereby barring
recovery under the Uniform Commercial Code as adopted in Georgia in
O.C.G A § 109A-3-406 and (2) that General Foods failed to give the bank notice
of the unauthorized checks within 60 days after the bank statements were made
available, thereby precluding General Foods from assening unauthorized
signatures against the bank as provided in the UCC as adopted in Georgia in
O.C.G.A. § 109A^-406. The case was ultimately settled.
Court:
Judge Roben L Vining, Jr.
United States District Court
Northern District of Georgia
P O. Box 6226
Rome, Georgia 30162-6226
(706)291 5671
Counsel for opposing party:
Mr John W Hinchey*
Mr Alben E Phillips**
Phillips, Hinchey & Reid
Atlanu, Georgia
■17-
268
10.
Both attorneys are now with different law firms:
*Mr. John W. Hinchey •*Mr. Albert E. Phillips
King & Spalding Phillips & Reid
42nd Floor 1200 Harris Tower
191 Peachtree Street. N.E. 233 Peachtree Street. N.E.
Atlanu. Georgia 30303-1740 Atlanu. Georgia 30303
(404) 572-4600 (404) 659-6000
Chrysler Credit Corporation v. Southlake Dodge. Inc. and Paul F. Fusillo.
Civil Action File No. C75-434 (U.S.D.Ct.,N.D.Ga. 1983-84).
The plaintiff Chrysler Credit made a loan to Southlake Dodge, a car dealership,
which my client Paul Fusillo guaranteed. In 1974, the plaintiff Chrysler Credit
received a summary judgment for $217,928.51 on the loan against the defendants.
The defendants' original counsel never responded to plaintiffs motion. As the
motion was unopposed, judgment was entered. After the judgment was entered,
Chrysler Credit took possession of all collateral for the loan and sold the vehicles,
equipment, accounts receivable, and all assets of the car dealership. For nine
years, Chrysler Credit took no action and the judgment became dormant.
Nine years later, in 1984, Chrysler Credit sought to revive the 1974 judgment and
seek a deficiency from my client defendant Fusillo. In 1984 1 was retained to
defend Mr. Fusillo in connection with the revival and deficiency motions.
Defendant Fusillo contended the judgment already was satisfied not only in fact
but also by virtue of an accord and satisfaction. Alternatively, defendant Fusillo
asserted that Georgia law presumes the collateral equals the debt because Chrysler
Credit could not show its sale of the collateral was commercially reasonable under
O.C.G.A. § 11-9-504. There were numerous other defenses. Ultimately, the
Court denied Chrysler Credit's motion to seek a deficiency, and my client Fusillo
prevailed as a matter of law.
Court:
Senior Judge Charles A. Moye.
United Sutes District Court
Northern District of Georgia
2342 U.S. Courthouse
75 Spring Street. S.W.
Atlanta. Georgia 30303
(404) 331-4559
Counsel for opposing party:
Jr. Mr. Gregory J Digel
Branch. Pike, Ganz & O'Callaghan
15th Floor, Two Midtown Plaza
1360 Peachtree Street, N.E.
Atlanu. Georgia 30309-3507
(404) 898-8000
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269
19. Legal Activities: Describe the most significant legal activities you have pursued,
including significant litigation which did not progress to trial or legal matters tkat
did not involve litigation. Describe the nature of your participation in this question,
please omit any information protected by the attorney-client privilege (anless the
privilege has been waived).
The vast majority of my law practice was civil litigation involving over 200 lawsuits in
federal and state courts, as outlined in questions 17 and 18 above.
In addition to handling many lawsuits in federal and state trial courts, my law practice
also involved: (a) construction contract cases before the American Arbitration
Association; (b) construction contract claim negotiations where disputes arose between
parties dunng the course of construction on a project; (c) investigation of claims for and
against insurance companies, rendering written opinions as to coverage, and negotiatiflg
settlements.
My legal activities also included extensive involvement and leadership roles in local, state
and national bar associations and activities, as outlined in question 9 above.
Finally, I have served on many committees. State commissions, and the boards of ajn-
profit organizations, all of which seek to improve the civil and criminal justice system,
as also outlined in questions 9 and 16 above.
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270
II. FINANCIAL DATA AND CONFLICT OF INTEREST rPUBLIC)
1. List sources, amounts and dates of all anticipated receipts from deferred income
arrangements, stock, options, uncompleted contracts and other future benefits which
you expect to derive from previous business relationships, professional services, Tu-m
memberships, former employers, clients, or customers. Please describe the
arrangements you have made to be compensated in the future for any flnancial or
business interest.
If confirmed, I will resign from my present position as Judge of the Superior Court of
Fulton County and will withdraw all funds in my State of Georgia and Fulton County
retirement plans and transfer these funds to my existing, personal IRA account. I will
have no continuing financial interest in any pension or retirement plan or otherwise as
a result of any current or prior employment.
I have no financial or business relationships to sever or for which to be compensated.
2. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern. Identify the
categories of litigation and fmancial arrangements that are likely to present potential
conflicts-of-interest during your initial service in the positions to which you have
been nominated.
I will follow all guidelines and standards of the Code of Judicial Conduct for United
States District Court Judges. Among other procedures, I will not preside over any
matter, or hear the case of any party, which presents a conflict of interest, a potential
conflict of interest, or the app>earance of a conflict of interest.
I am not aware of any categories of litigation or flnancial arrangements which will
present potential conflicts of interest during my service, except as follows:
(a) I have not had a financial interest in my prior law firm of Powell, Goldstein,
Frazer & Murphy since 1984. However, to avoid even the appearaiKe of a
conflict, I. as a Sute trial judge for nine years, have not presided over cases
where my former law firm represents a party. I plan to continue that practice as
a federal Judge.
(b) My husband has an interest in ceruin limited businesses and real esute outlined
in our flnancial sutements in Exhibit 5. Of course, I would not preside over any
matter involving my husband's businesses or real esute.
3. Do you have any plans, commitments, or agreements to pursue outside employment,
with or without compensation, during your servke with the court? If so, explain.
None.
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271
List sources and amounts of all income received during the calendar year preceding
your nomination and for the current calendar year, including all salaries, fees,
dividends, interest, gifts, rents, royalties, patents, honoraria, and other items
exceeding $500 or more. (If you prefer to do so, copies of the financial disclosure
report, required by the Ethics in Government Act of 1978, may be substituted here.)
A copy of the financial disclosure repon, required by the Ethics in Government Act of
1978, is attached as Exhibit 4.
Please complete the attached financial net worth statement in detail (Add schedules
as called for).
See Exhibit 5.
Have you ever held a position or played a role in a political campaign? If so, please
identify the particulars of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
No.
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272
m. GENERAL fPUBLlO
1. An ethical consideration under Canon 2 of the American Bar Association's Code of
Professional Responsibility calls for "ever>' lawyer, regardless of professional
prominence or professional workload, to find some time to participate in serving the
disadvantaged." Describe what you have done to fulfill these responsibilities, listing
specific instances and the amount of time devoted to each.
In my law practice, I handled several pro bono civil and criminal cases as an attorney.
As a lawyer, I participated in Atlanta Legal Aid's Saturday volunteer lawyer program
where private attorneys staffed the Atlanta Legal Aid office on Saturday and accepted
four to five clients per Saturday.
During 1988-1991, I served on the Board of Directors of the Atlanu Volunteer Lawyers
FouiKlation ("AVLF"), which recruits attorneys to handle pro bono civil cases in Fulton
County and provides pro bono attorneys to over 1,000 low income clients in Fulton
County, Georgia.
During 1990-1992, 1 served on the Outreach Committee of my church which awards over
$100,000 in grants to numerous non-profit organizations assisting the disadvantaged.
During 1988-1991 , 1 volunteered as a Sunday School teacher for elemenury school age
children at Emmaus House, serving children from poor inner-city families.
During 1976-1979 1 served on the Board of Directors of Metro Atlanta Mediation Center.
Inc. , which operates The Bridge, a non-profit family counseling center providing services
to low income families.
During 1990 to the present, I have served as a member of the State Bar of Georgia
Correctional Facilities and Services Committee which, inter alia, promotes and oversees
the "BASICS" program offering employment workshops for inmates prior to release.
2. The American Bar Association's commentary to its Code of Judicial Conduct states
that it is inappropriate for a judge to hold membership in any organization that
invidiously discriminates on the basis of race, sex, or religion. Do you currently
belong, or have you belonged, to any organization which discriminates - through
either formal membership requirements or the practical implementation of
membership policies? If so, list, with dates of membership. What have you done
to try to change these policies?
No.
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273
Is there a selection commission in your jurisdiction to recommend candidates for
nomination to the federal courts? If so, did it recommend your nomination? Please
describe your experience in the entire judicial selection process, from beginning to
end (including the circumstances which led to your nomination and interviews in
which you participated).
Senator Sam Nunn of Georgia established a Judicial Selection Advisory Committee with
nine members, which was chaired by Atlanta lawyer Gordon Giffin of the firm of Long,
Aldridge & Norman. All interested persons were invited to apply. All applicants
completed an extensive questionnaire and submitted writing samples by May, 1993. All
applicants were interviewed by the entire Judicial Selection Advisory Committee in June,
1993. Thereafter, Senator Nunn personally interviewed numerous candidates for the two
vacancies on the United Slates District Court for the Northern District of Georgia.
Senator Nunn subsequently recommended me as a candidate for one vacancy to President
Bill Clinton Subsequently, I completed questionnaires for the Department of Justice,
the Federal Bureau of Investigation, and the American Bar Association. I was
interviewed in person by official representatives of the Department of Justice, the Federal
Bureau of Investigation, and the American Bar Association.
Has anyone involved in the process of selecting you as a judicial nominee discussed
with you any specific case, legal issue or question in a manner that could reasonably
be interpreted as asking how you would rule on such case, issue, or question? If so,
please explain fully.
No.
Please discuss your views on the following criticism involving "judicial activism".
The role of the Federal judiciary within the Federal government, and within society
generally, has become the subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism that alleges that the
judicial branch has usurped many of the prerogatives of other branches and levels
of government.
Some of the characteristics of this "judicial activism" have been said to include:
a. A tendency by the judiciary toward problem-solution rather than grievance-
resolution;
b. A tendency by the judiciary' to employ the individual plaintiff as a vehicle for
the imposition of far-reaching orders extending to broad classes of
individuals;
c. A tendency by the judiciary to impose broad, affirmative duties upon
governments and society;
d. A tendency by the judiciary toward loosening jurisdictional requirements
such as standing and ripeness; and
-23-
274
e. A tendency by the judiciary to impose itself upon other institutions in the
manner of an administrator with continuing oversight responsibilities.
Federal trial judges should, and generally do, decide individual cases based on the
relevant facts and applicable law, resolve only the grievance before them, and do not
employ an individual plaintiff as a vehicle for the imposition of far-reaching orders
extending to a broad class of individuals or institutions. In fact, various elements
combine to limit the role of the Federal judiciary. For example. Federal trial courts have
specific, limited jurisdiction as to what cases may be heard and decided. Standing and
ripeness requirements further limit what Federal trial courts can hear and decide. In
addition. Federal trial judges are bound by a large body of judicial precedent, plus
legislative enacunents significantly controlling the cases and issues to be decided.
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275
FINANCIAL DISCLOSURE REPORT KHnKsiHlS"-
{5 U.S.C.A. App. 6, tS101-X12)
1. r«raoe ttaportlsg (Laat ammm, tlrst, middl* lnlt.l«lj
HULL. FRANK MAYS
2. Court or Organization
United Stales District Court
for Northern District of Georgia
3. Dat* of Haport
Feb. 10, 1994
4. Tltl* [Xrtlcla III ^udgaa Indlcat* activ* or
aanlor atatua; Haglatxata ludgaa indlcata
lull- or part-tlsaj
United States District Court Judge - Active
Report ryp« (cnacK apprppflata 5Xp«)
Noalnatlon, Data „'
Initial Annual Final
6. ftaportlog Parlod
1/1/93 - 12/31/93
1/1/94 - 2/10/94
7. Cb«ab«r* or Of fie* Xddx*«a
Judge. Fulion Superior Court
Atlanu Judicial Circuii
185 Ctnu^al Ave. SW., Room T4705
Atlanta Georgia 30303
8. On ui* baalB of tbo InforsAtloB conlainad Id tlila Raport. It
la, in ay opinloD, In coapllanca wltb appllcablo lawa and
ragulatlona
Raviawlny Offlcar SlgnaLura
IMPORTANT NOTES: The instrucaons accompanying this form must be followed. Complete all parts,
cbeddng the NONE box Tor each section where you have no I'eportable infonnation. Sign on last page
I. POSITIONS. (Reporting individual only; see pp. 7-8 of Instructions.)
POSITION NAME OF ORGANIZATION/ENTITY
I NONE (No raporubla poaltloaa)
Director. Board of Directors
American Judicature Society. Chicago, Illinois
Member
State of Georgia Commission on Family Violence
II, AGREEMENTS. (Reponing individual only, see p. 8-9 of Instructions.)
DATE PARTIES AND TERMS
H
NONE (Ho raportablo agr««aanta)
NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 9-12 of Instructions.)
DATE
(Honoraria only)
SOURCE AND TYPE
1 I NONE (Ho raportabla aon-lnvaat«a&t Incoaa)
' 1/1/93 - 1/31/94
Slate of Georgia. Superior Courts of Georgia
(Judees Salan')
1/1/93 - 1/31/94
1/1 '93 - 1/3 r94
Board of Comnussioners of Fulton Count>'
fliirige's Salary '
GROSS INCOME
(yours, not spouse's)
70.948.28 (1993)
$ 6.112.00(1994)
29.933 74 (1993)
$ 2.550 00 (I9')4)
Lord. Aeck &. Sareeni. Inc (Architecis Salar>)
EXHIBIT 4
276
FINANCIAL DISCLOSURE REPORT (cont'd)
> of P«rBDn Importing
HULL. FRANK MAYS
tfXM of ftspart
Feb. 10. 1994
IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.
(Indodcs those to spouse and dependent children: use the parentheticals "(S)' and '(DC)' to indlalc rcporlabie
reimbunemeots and gifts received by spouse and dependent children, mpectively. Sec pp.13-15 of Initmctioaa.)
SOURCE DESCRIPTION
NONE lao aocb r*porx«tol* r«labara«aaj)t« or gifts)
Mnt applirahlf imHyr Swtinn in?rh'>
n
OTHER GIFTS, (includes those to spouse and dependent children; use the parentheticals '(S)* aod '(DC)* to
indicate other gifts received by spouse and dependent children, respectively. See pp.15-16 of Instructioas.)
D
SOURCE
NONE (Mo aoeta raporxabl* glfla)
DESCRIPTION
VALUE
Not applicable under Section 102(h)
VI. LIABILITIES, (includes those of spouse and dependent children; indicate where applicable, person respoosible
for liability by using the parenthetical *(S)' for separate liabilit> of spouse, *(J)'/orjoiiit liability of reportiiit
' liability by using the parenthetical *(S)' for separate liabilir> of spouse, *(J)' for jo
individual ana spouse, and '(DC)* for liability of a dependent child, ^ee pp.lfr'18 orlnstructioos.)
H
CREDITOR
NONE (ao r»perubl> llatillltlM)
DESCRIPTION
VALUE CODE*
VAua ooou:
J • $13,000 or !■••
a - s2So,ooi u ssoo.ooo
a • sis, 001 to sso,ooo
O • (900,001 to SI, 000, 000
SSO.OOl to sioo.ooo
Hoto UlAS $1,000,000
SlOO.OCl ts (IM.OOO
277
FINANCIAL DISCLOSURE REPORT (cont'd)
Naift« of P«r«on Rsportlng
HULL. FRANK MAYS
Date o; Raporx
Februan' 10. 1994
VII. INVESTMENTS and TRUSTS -- income, value, transactions.
and dependent children; see pp. 18-27 of Instructions.)
(Includes those of spouse
p««crlptlon of AAflac*
(iacludins tru*t MMt*)
IndicAta, wb*r« appllc«blB, own*r of
th« a*p«i DY UBUia Uia par»ntrt«UC«l
•(J)" for iolnt ovn»ritilp of raport-
Ing individual auc aoouae, "(S) for
aapaxar* o»^aralilp by ■pouaa, '(DC)"
for own^ranip by oapendant cblld.
Placa *(X)* afc«r oach aaaat
•xaapt froai prior dlacloaur*.
Incoee
djrlng
reporting
period
c.
Croas valoe
at end of
reporting
period
D.
Traoaactlona during reporting period
ID
Alt.,
(k-B)
12)
rent or
lot.)
(1)
Valoe:,
COOe'
(J-P)
12)
Value
Method^
Code'
(O-W)
bijiih,
BftTcei:,
r«d*«inp"
tlon)
i; not axenpt iroa di*=lo»ur« |
ille:
Hon to-
Day
!3)
Value,
code^
(J-P)
(♦)
code'
(»-B)
'5)
Ideatlty of
bayer/aelier
(11 private
traDaaetloo]
NO?^ (No raportabla
Incona, aaaeta, or
rranaactlonat
^ Real Esuie-:<-15: Woodhavcn RJ .NW
Allanl.n Fiilinr- Tniinn GA
None
N
W
^25^ Real Esiaie-37 S[one> Creek
Hilrtin Heart B-a'j((>n C^^ . SC
D
Rem
M
W
^ Undev Real Esiale-:: acres
Hen^^ Cr\ GA
None
L
W
'stocks/Bonds r IR.^ accnuni
B
Div/lnl,
CG
L
T
^Fulion Cr> Reiiremeni Plan
None
K
T
^Superior Ct JuL!|;t's Reuremtrni Plan
None
J
T
' Real F.stateLii] partner
Pine« od Ltd . Dekalh Cr\. GA
None
J
W
(S)
^25% stock in archiiectural firm
l^rd Aeck A: Sari^ent. Inc
No
tha:
le other
sala^^'
N
u
(S)
*401fK) Retircmeni Plan &. Trust*
I ord Aeck &. Sarcenl, In:
E
Div/bt/
CG
0
T
(S)
'%locks/Bonds in IRA accounl
Smith Ramr\ Shearscn
B
Div/lni
K
T
(S)
'^eal EsuieSlock in Co-Op Parking.
Inr Alljni.T Fiilinn Cn G^
D
D.v M
W
(S)
"■^eal Esiaie-Ltd Paruier
P^Tirhtree *;r ' iil Afiann Ci ^
None
K
w
(S)
^^cal E5Uic-::nO W Wcslev Rd
None
K
w
(S)
'^5% Real Esiaie. 37 Sicine> Creek
Hilmn Hrif' R-jiifor. rr\ SC
D
Rem
M
»
(D
:j^locks/Bonds, RH.A's (»o accls*
Smith n^m-j Shear^nn
E
Div/lnt/
CG
N
T
(D
r^'Slocks/Bonds. MHA'.s accl*
C
DivAni;
CG
K
T
(D
:5'Rcal Esiaie
None
M
w
(D
:^h.57c Real E<;iaic-37 Sinn-> Creek
Uilinn U^tM R/'atifiirf Cn ^('
D
Rent
M
w
(D
:^\e2\ Esuie-:200 V.' Wesle> Rd
None
L
w
20
I Inc»»a/Caln Cod»»: *»S1,DOO or in* B>S1,001 to 52,500 C-52,501 to 5,000 D«$5,001 to SIS, 000
(See Cc;. B: t D41 E-S15.001 I.O 550,000 F-S50,001 to SIOO.OOO C-S100,001 to 51,000,000 B-Morp thac Sl.OOO.OtK)
5 Value Cooea: J-SlS.OOC or leaa K.SlS.OOl to SlO.OOO L-S50,001 to 5100,000 H-SIOO.OOI to 5250,000
[See Col. CI 1 031 l»-S250,rol to 5500,000 0-5500,001 to 51. 000. 000 P-Wore -Ibt. 51.000.000
3 Valne Heuiod Codea: Q-Ap?ralaal R-Coat (real estate only) S-Aaaeaament T-C«Bb/M*rket
(See Col. C2) U-Book Value v-otber w-Eatiaat«d
'Sc; auached Iim nf smck'-'hond'^
278
FINANCIAL DISCLOSURE REPORT (cfflDI'd)
• of Parson Raporting
HULL. FRANK MAYS
D«ts Of luport
Feb. 10, 1994
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (indicate part of Report.)
As a current Judge of the Superior Court of Fulion County. Georgia. I participate in retirement plans with the Sute of
Georgia and Fulton County listed in items VII (5) and (6). Upon becoming a United States District Court Judge. I will
resign my present judgeship, withdraw those retirement funds, and transfer them to my IRA account in item Vn (4).
IX. CERTIFICATION.
Id compliance with the provisions of 28 U.S.C. § 455 and of Advisory Opinion No. 57 of the Advisory Committee on
Judicial Activities, and to the best of my knowledge at tbe time after reasonable inquiry. I did not perform any adjudicatory
function in any litigation during tbe period covered by this report in which I. my spouse, or my minor or dependent children
had a financial interest, as defined in Canon 3C(3)(c). in tbe outcome of such litigation.
I certify tbal all information given above (including information pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to tbe best of my knowledge and belief, and that any information not reported was
withheld because it met applicable statutory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the accepunce of gifts which have been
reported are in compUance with tbe provisions of 5 U.S.CA. app. 7. § 501 et. seq.. 5 U.S.C § 7353 and Judicial Conference
regulations.
Signature ,
"^.fi^^Tiyhfiuf
Date
10^ 1994
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA. APP. 6, { 104, AND 18 U.S.C i 1001.)
■'■■"'■d .:'■' ?^' ■:--^'::'^' .
■ . <■ ; -i?..
FIUNO INSTRUCTIONS:
Mail signed original and 3 additional copies to: Jodidal Ethic Committee
AdministiatWc Otfioe of the
United Sutes Courts
Washington. DC 20544
-■• ;'^';
279
IN THE SUPERIOR COURT OF FULTON CCUNTY
STATE OF GEORCU
n/n
A /ykiyLyQ
V7i/Au\
CIVIL ACTION FILE NO. J^O^W^J
ORDER
The above case coming en for hearing, afcer
having been published ^i provided by law, and.no appearance
having been made, the same is distai^sed for want of prose-
cution without prejrraice. / y
This /'yday of
y
.^^^^njP y . 1988.
/t
JUDGE CLARENCE COOPER /^
Fulton Superior Court, A.J.C.
EXHIBIT 6
280
IN THE SUPERIOR COURT OF FULTON COUNTY f//77r7r~--
STATE OF GEORGIA
JERRY LARRY COLLIER,
Petitioner,
V.
DAVID C. EVANS, LANS ON
NEWSOME, NEAL B. CHILDERS ,
and THE HONORABLE FRANK
M. HALL,
Respondents .
CIVIL ACTION
NO. E-07920
ORDER
This matter came on before this Court on February 25, 1993,
for oral argument on Petitioner's request for mandeunus relief.
The gravamen of Petitioner's assertion was that the
agreement that he entered into in Civil Action No. D-76039 was
invalid and should be set aside. Counsel for the Respondents
denied there was any impropriety in the agreement, but agreed
to vacate the judgment in said case if the Petitioner would
return the $750.00 earlier paid to him and to a trial by jury.
Petitioner agreed to do so and, hence. Petitioner's request tor
mandeunus relief is denied as moot.
It is hereby ORDKRKD that the Petitioner has until
* March 31, 1993, to return to the State Law Department the sum
of $750.00 which was tendered to him in settlement of Civil
Action No. D-76039. No extensions of time shall be given to
the Petitioner to return the money. If the money is returned
281
in a timely fashion, Civil Action No. D-76039 can be re-opened.
m the event the Petitioner fails to return the money to the
State Law Department by March 31, 1993, the matter will be set
for further hearing.
This order is based upon an offer made by the Respondents in
open Court on February 25, 19?'3-
So ordered, this^>^h day of March, 1993.
282
IK THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATIANTA DIVISION
JEFFREY MILLS
vs.
HONORABLE FRANK M. HULL
l:92-CV-1463-RCr
O R D E B
This action is before the court on plaintiff's various notions
[il7-l] I#18-l] [120-1] and Ii21-1),' and defendant Judge Frank M.
Hull's motion for reconsideration [125-1] or, in the alternative,
for summary judgment [t25-2]. All motions are unopposed.'
p^gkground
Plaintiff, proceeding pro se. alleges that Judge Hull declared
plaintiff incompetent and ordered him institutionalized in
violation of his constitutional rights. Judge Hull, asserting the
doctrine of judicial immunity, moved to dismiss plaintiff's action.
This court denied Judge Hull's motion in light of plaintiff's pro
se status, plaintiff's broad allegations of wrongdoing, and the
very nigh standard for succeeding on a motion to dismiss. See
Order of April 16, 1993 [April Order], at 1-3.
^Each of plaintiff's motions attempts to complain of
wrongdoing by Judge Hull. However, the motions recite
incomprehensible and/or irrelevant information without requesting
relief.
^Failure to file a response shall indicate that there is no
opposition to the motion. LR 220-l(b), NDCa.
283
Discussion
Judge Hull requests that the court reconsider its April Order
and grant the notion to dismiss. The court finds a grant of
summary judgment a more appropriate alternative. Under Fed. K.
Civ. P. 56, the court should grant a notion for sununary judgaent
where "there is no genuine issue as to any material fact and . . .
the moving party is entitled to judgment as a matter of law." The
movant carries her burden by showing the court that there is "an
absence of evidence to support the nonmoving party's case."
Celotex corn, v. Catrett . 477 U.S. 317, 325, 106 S. Ct. 2548, 2554
(1986) .
The evidence submitted indicates that after plaintiff vas
arrested for violating the Georgia Controlled Substances Act, his
case was assigned to Judge Hull. Affidavit of Judge Frank M. Hull,
at 1 2-4. Based on plaintiff's indigence, Judge Hull appointed a
lawyer to represent plaintiff. Id. at J 5. Plaintiff's appointed
counsel requested a forensic services examination to determine
plaintiff's mental state. Id. Judge Hull ordered that
examination. Id. The evidence also shows that Judge Hull
performed only judicial actions with regard to plaintiff. Id. «t
8. Plaintiff has offered nothing to indicate that Judge Hull acted
outside of her official capacity or that Judge Hull acted outside
her jurisdiction.
"Judicial immunity is an absolute immunity; it applies even
where a judge acts maliciously." Harris v. Deveaux. 780 F.2d 911,
914 (11th Cir. 1986). A judge is entitled to such immunity
284
provided: (1) the judge dealt with the plaintiff in a judicial
capacity, and (2) the judge did not act "in the *clcar absence of
all jurisdiction.'" Id. (quoting Stuwp v. Soartatian. 435 U.S. 349,
357, 9B S. Ct. 1099, 1105 (1978)).
1. Judicial Capacity
Judge Hull's affidavit indicates: (1) that Judge Hull
performed a typical judicial function in ordering plaintiff to
undergo a mental exaoination; (2) that Judge Hull acted in open
court; (3) that she ordered the evaluation because plaintiff's
criminal case was pending before her; and (4) that the actions of
which plaintiff complains arose directly from plaintiff's visit to
Judge Hull in Judge Hull's official capacity. Plaintiff has
offered no evidence to the contrary. Thus, defendant has
established that she acted in her judicial capacity.
2. Jurisdiction
This court can find that Judge Hull acted in the clear absence
of all jurisdiction only "if [Judge Hull] completely lack[ed)
subject matter jurisdiction." Harris. 780 F.2d at 916 (citing
Dvkes V. Hosemann. 776 F.2d 942 (11th Cir. 1985) (en banc)). It is
undisputed that Judge Hull acted within her jurisdiction when she
granted plaintiff's criminal counsel's request for a mental
evaluation of plaintiff.
Therefore, the court finds that Judge Hull is entitled to
judicial immunity and, correspondingly, grants Judge Hull's motion
for summary judgment.
285
Accordingly, plaintiff's various notions which atteapt to
assert wrongdoing, but which raguest no relief [fl7-I] [118-1]
[#20-1] and [121-1] are DENIED. Defendant Judge Frank M. Hull's
motion to reconsider [#25-1] is DENIED as MOOT, and her alternative
notion for sumaary judgment [#25-2] is GRANTED. The Clerk is
DIRECTED to dismiss this action as to Judge Frank Hull.
SO ORDERED
, this t^\ day of June, 1993.
/^^^U^
:HAR£> C. FREE
Sf NIOR UNITED STATES DISTRICT JUDGE
- - 'S93
286
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
lARRY BRANT SARGEANT
vs.
FULTON COUNTY, FULTON COUNTY
JAIL PERSONNEL, FULTON COUNTY
MORMONS
FILED IN' CLERKS CFFii
u.sar. A-v
JUL051S9C
CIVIL NO. 1:90-CV-1181-ODE
9RPEP
This civil rights action is before the court for a
frivolity determination pursuant to 28 U.S.C. S1915(d).
This case purportedly arose after Fulton County police
officers arrested Plaintiff and seized his car on March 23,
1990.' Plaintiff, acting pro se, claims this arrest was made
without a warrant or probable cause and therefore constitutes an
unlawful search and seizure. Plaintiff also alleges that he was
attacked, apparently just prior to his arrest, by elders of the
Mormon Church, who were not arrested. In his initial complaint.
Plaintiff, a self -described "Holy Profit of God, since 1962 and
the President of the Church of Jesus Christ of Latter Day Saints
since 1951," seeks one billion dollars in real damages and one
billion dollars in punitive damages.
In an amended complaint. Plaintiff further alleges that
at 11:00 A.M. on March 23, 1990, he was booked into the Fulton
County Jail and confined with a large number of inmates in a
'plaintiff apparently is presently incarcerated at the
Fulton County Jail in Atlanta, Georgia.
287
small holding cell. Plaintiff claims he became ill from the
smoke. He asserts he begged the guards for relief and around
midnight he was taken to another room, where he did not receive
treatment for his vomiting condition, which was caused by a
bleeding ulcer. Plaintiff states that he was forced to wait in
the room until the guards finished their card game at 2:00 A.M.
As relief. Plaintiff requests that the Defendant jail personnel
each be fined in the amount of $1000.00 and imprisoned for one
year.
In his additional amended complaint. Plaintiff asserts
that the Defendant Mormons evaded paying income taxes. He
requests that this court sentence them to serve life imprisonment
at Fort Levenworth and order them "hung on the Haliyards [sic]
of the U.S.S. Constitution and towed out off Plymouth Rock, seven
miles and Drawn and Quartered and Fed to the Fish, by the
Destroying Angel of God, the Holy Ghost and Holy Angel, known as
the Lion of the Tribe of Judah."
On June 1, 1990, Plaintiff filed an additional
complaint alleging that he was brought to court on May 7, 1990,
but not permitted to appear and that he was appointed a public
defender after he pleaded not guilty. He asseirts that a
Magistrate set his bail at $800.00, but was told that it had been
increased to $2,800.00. Plaintiff alleges that he was brought
to court on June 1, 1990. He claims that Judge Frank Hull
offered to release him on time served under a plea of guilty.
Plaintiff further avers that Judge Hull found him incompetent to
288
stand trial and ordered hin sent to St. Regis Medical Center for
thirty days. As relief. Plaintiff requests that the court fine
Judge Hull $10,000 for violating his constitutional rights.
Under 28 U.S.C. S191S(d), the court is authorized to
dismiss an in forma pauperis complaint "if satisfied that the
action is frivolous or malicious." Neitzke v. williains. 490 U.S.
, 109 S. ct. 1829 (1989). Where the legal theory or factual
contentions asserted in the complaint lack an arguable basis, a I
I
claim is frivolous. Id. Having read and considered Plaintiff's '
complaints, the court finds them frivolous. ;
Under the circumstances stated in the complaints, the '
venerable common law tenet of judicial immunity applies. Tmbi^^r j
v. Pachtman. 424 U.S. 423 n. 20 (1976). Insofar as the complaint |
may seek review of any determinations of a superior or municipal |
court of the State of Georgia, in this procedural posture, the
court lacks subject matter jurisdiction. This court possesseB
"no power whatsoever to sit in direct review of state court
decisions." District of Coluinbia Court of Appeals v. Feldman.
460 U.S. 462 (1983) (quoting Atlantic Coastline Railroad Co. v.
Leeowotive Engineers. 398 U.S. 281 (1970)).
As to the claims against the Fulton County Jail
personnel. Plaintiff has chosen an inappropriate forum in which
to seek the relief he requests. However, construing the pro ■•
complaint in the broadest possible light, it contains facts which
arguably may state a claim, such that dismissal at this stage of
the proceedings would be inappropriate. Neitzke at 1829
289
(standard under 28 U.S.C. SX9I5(d} not co-equal to Fed. R. Civ. P.
12(b)(6)).
As to the tax related allegations against the un-naaed
Horaon elders, Plaintiff lac)cs standing to pursue that clain.
£££ Valley Forae College v. Americans Dnited. 454 O.S. 464
(1982). Insofar as the complaint could possibly be construed to
assert any other claims against these Defendants, because
Plaintiff does not allege that these individuals are state actors
or provide any basis for diversity jurisdiction, the court
declines to exercise jurisdiction.
Accordingly, Plaintiff's claims against Judge Hull and
the Mormon elders are DISMISSED as frivolous pursuant to 28
U.S.C. s 1915(d) . The claims against Fulton County and the Fulton
County Jail may proceed.
The Clerk is DIRECTED to forward .sufficient United
»■- -.
States Marshal Service forms and summons foms to Plaintiff.
Upon receipt. Plaintiff is hereby ORDERED to complete the tons
and return them to the Clerk within thirty (30) day* from the
entry date of this order so that process may be served on
Defendants. This action shall proceed no further until these
forms are returned. A failure to timely comply with this order
will result in a dismissal of this action pursuant to L.R. 230-
3. Should Plaintiff fail to so comply, the Cler)c is DIRECTED to
resubmit this case to the Magistrate after the aforementioned
time.
290
Plaintiff is further DIRECTED to serve upon Defendants
or their counsel a copy of every additional pleading or other
docuaent he files in this aatter. He shall include with each
filing a certificate stating the date on which he Bailed an
accurate copy of that document to Defendants or their counsel.
This court shrll disregard any papers Bubnitted which have not |
I
been properly filed with the ClerJc or do not include the I
certificate of service. Plaintiff is DIRECTED to keep the court |
i
and Defendants informed of his current address at all times
during the pendency of this action.
SO ORDERED, this 5~ day of July, 1990.
ORINDA D. EVANS ..-•--
UNITED STATES DISTRICT Judge
. ■: i
SJ
.0
291
FINANCIAL STATEMENT
Frank M Hull*
ASSETS
LIABILITIES 1
Cash on hand and in banks
U.S Govemmenl secunlies
Usied secunties
Uolisied secuniies
Accouou and notes receivable:
Due from relatives, friends, others
Real estate owned
100% interest in pnmar> residence
3452 Woodhaven Road, N.W S450.000
Atlanta, Georgia
25% interesi in vacaiion/renial home
37 Stoney Creek Road $ 50.000
Hilton Head Island, SC
Interesi in Pinewood Ltd. P'ship
apanmeni complex $ 10.000
Dekalb Count) . Georgia
lOOS inieresi in 22 acres
undeveloped propeny
Henry County, Georgia S 65.000
Real estate mortgages receivable
Autos and other personal propeny
1989 Ford Taurus 5,000
1986 Chevrolet Suburban 2.000
An. jewelry, furniture 35.000
Cash value - life insurance
Other assets - itemize;
IRA account (statemeni attached)
Fulton County Retirement Plan
Superior Coun Judges Retirement Plan
Total assets
$ 3.324
Notes payable to banks - secured
S 0
0
Notes payable to banks - unsecured
0
0
Notes payable to relatives
Notes payable to others
0
0
0
0
Accounts and bills due
0
0
Unpaid income tax
0
575,000
Other unpaid tax and inlerest
Real estate mortgages payable
Chattel mongages and other liens payable
Other debts - itemize:
0
30.000
11.000
0
0
0
42,000
0
55,660
38.889
Total liabilities
$41,000
6.373
Net worth
$680,246
$721,246
Total liabilities and net worth
1721,246
CONTINGENT LIABILITIES
GENERAL INFORMATION |
As endorser, comaker or guarantor
None
Are any assets pledged? (Add schedule)
No
On leases or conirarts |
None
Are you defendant in any suits or legal actions?
No
Legal Claims
None
Have you ever taken bankruptcy?
No
Provision for Federal Income Tax
None
Other special debi
None
1
'These are assets in name oj frank M Hut', and do not include assets in name of husband Antonm Aeck ('Tony')- See separate Fuuutcial Staumeni oj
husband attached hereto-
EXHIBIT 5
292
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FINANCIAL STATEMENT
Antonin Aeck*
ASSETS
LIABILITIES
Cish on band and in banks
U.S. Covemmeni securities
Usied secuniies
1 Unlisied secunties ■ 25% siock in
Lord. Aeck & Sargent, Inc.
Accounu and notes receivable:
Due from relatives, friends, otben
Real estate owned
33VS% interest in two acre
residential lot $ 40.000
Peactatree South Ltd - owns
parking lot, Atlanta. Georgia S 26.000
Co-op Parking. Inc owns
parking lot. Atlanta. Georgia SI02.000
25% interest in vacation/rental home
1 37 Sione> Creek Road S 50.000
1 Hihon Head Island. SC
Real estate mortgages receivable
Autos and other personal propeny
1985 Mercedes $ 7.500
1986 Chevrolei Suburban 2.000
Alt, jewelry, furniture 35,000
Cash value - life insurance
Olber assets itemize:
IRA account (statement attached)
401(k) Retirement Plan & Trust
(staiemeni attached)
Total assets
$ 5.000
Notes payable to banks - secured
% 0
0
Notes payable to banks - unsecured
0
0
Notes payable to lelaiives
0
223.344
Notes payable to others
0
0
Accounu and bills due
0
0
Unpaid income tax
0
218.000
Other unpaid tax and interest
Real estate mortgages payable
Chattel mongages and other liens payable
Other debts - itemize:
0
11,000
0
0
0
44,500
0
36.369
501.586
Total liabilities
S ll.OOO
Net wofih
$1,017,799
Si. 028.799
Total liabilities and net worth
$1,028,799
CONTINGENT LIABILfTlES |
GENERAL INFORMATION
As endorser, comaker oi guarantor
On leases or contracts
Legal Claims
Provision for Federal Income Tax
None
Arc any assets pledged? (Add schedule)
No
None
Arc you defendant in^any suits or legal actions?
No
None
Have you" ever taken bankruptcy?
No
None
Other special debt
None
Frank M Hull aiiached hereto
EXHIBIT 5
294
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FINANCIAL STATEMENT
Richard Hull Aeck
(Minor Child)
ASSETS
LIABILITIES
Cash on hand and in banlu
U.S. Govemmeni securities
Listed securities
Unlisted securities
Accounu and notes receivable:
Due from relatives, friends, others
Real estate owned
Thirty acres undeveloped propeny
in Highlands. North Carolina S 60.000
2S% interest in vacation/rental home
37 Sioney Creek Road $ 50,000
Hilton Head Island. SC
33V4% interest in two acre
residential lot $ 40.000
Real estate mortgages receivable
Autos and other personal propeny
Cash value - life insurance
Other asseu - itemize:
Trust account (staiemeni attached)
Guardianship account (statement attached)
Total assets
$ 1.500
Notes payable to banks - secured
Notes payable to banks - unsecured
Notes payable to relatives
Notes payable to others
Accounts and bills due
Unpaid income tax
Other unpaid tax and interest
Real estate tnortgages payable
Chattel mongages and other liens payable
Other debts - itemize:
i 0
1 "
0
500
0
0
0
0
0
0
0
150.000
0
0
0
0
0
0
0
36.319
275.248
Total liabilities
S 0
Net worth
$463,567
$ 463.567
Total liabilities and net worth
$463,567
1 CONTINGENT LIABILITIES
GENERAL INFORMATION
As endorser, comaker or guarantor
On leases or contracts
Legal Claims
Provision for Federal Income Ta;t
Other special debt
None
Are any assets pledged? (Add schedule)
No
None
Arc you defendant in any suits or legal actions?
No
None
Have you ever taken bankruptcy?
No
None
None
EXHIBIT 5
297
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FINANCIAL STATEMENT
Molly Hull Aeck
(Minor Child)
ASSETS
LIABILITIES 1
Cash on band and in banks
U.S. Govemmeni securiiies
Listed securiiies
Unlisted securities
Accounts and notes receivable:
Due from relaiives. friends, others
Real estate owned
Thirt) acres undeveloped property
in Highlands, North Carolina S 60.000
33V4% interest in two acre
residential lot in
Atlanu. Georgia S 40,000
Real estate mongages receivable
Aulos and other personal property
Cash value - life insurance
Other assets - itemize:
Trust account (statemeni attached)
Total assets
$ 500
Notes payable to banks - secured
$ 0
500
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0
0
Notes payable to relatives
0
0
Notes payable to others
0
0
Accounts and bills due
0
0
Unpaid income tax
0
100.000
Other unpaid tax and interest
Real estate mongages payable
Chattel mongages and other liens payable
Other debts - itemize:
0
0
0
0
0
0
0
45,184
Total liabilities
$ 0
Nei worth
S146.184
$146,184
Total liabilities and net worth
SI46.I84
CONTINGENT LIABILITIES
GENERAL INFORMATION
As endorser, comaker or guarantor
On leases or contracts
Legal Claims
Provision for Federal Income Tax
Other special debt
None
Are any assets pledged? (Add schedule)
No
None
Are you defendait in any suits or legal actions?
No
None
Have you ever taken bankruptcy?
No
None
None
EXHIBIT 5
300
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301
UNITED STATES SENATE
Committee On The Judiciary
Washington, DC 20510-0275
I. BIOGRAPHICAL INFORMATION (PUBLIC)
Full name (include any former names used.)
Mary Mona Lisi
Address: List current place of residence and office
address(es) .
Home :
355 Stone Ridge Drive
East Greenwich, RI 02818
Office:
Office of Disciplinary Counsel
Fogarty Judicial Annex
24 Weybosset Street
Providence, RI 02903
Date and place of birth.
September 4, 1950
Providence, RI
Martial Status (include maiden name of wife, or
husband's name). List spouse's occupation, employer's
name and business address(es).
Married.
Stephen J. Reid, Jr., Attorney
Blish & Cavanagh
Commerce Center
30 Exchange Terrace
Providence, RI 02903
Education: List each college and law school you have
attended, including dates of attendance, degrees
received, and dates degrees were granted.
University of Rhode Island
Kingston, Rhode Island
September, 1968 - June, 1972 B.A. 1972
302
University of Rhode Island
Kingston, Rhode Island
September, 1973 - August, 1974
Course work in Master's Program.
No degree awarded; I left to attend
law school
6.
Temple University School of Law
Philadelphia, Pennsylvania
August, 1974 - May, 1977 J.D.
1977
National College for Criminal Defense
University of Houston
Houston, Texas
May, 1980 - June, 1980
Certificate of Completion Trial Practice I
6/80
Employment Record: List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnership, s institutions and
organizations, nonprofit or otherwise, including
firms, with which you were connected as an officer,
director, partner, proprietor, or employee since
graduation from college.
9/72-6/73
6/73-8/73
8/73-8/74
9/74-5/76
9/75-5/76
Prout Memorial High School
Wakefield, Rhode Island
History Teacher
Scholastic International
New York City, New York
Tour Chaperone
University of Rhode Island
Kingston, Rhode Island
Hall Director
University of Pennsylvania
Veterinary Hospital
Philadelphia, Pennsylvania
Receptionist
Professor Jerome Sloan
Temple University School of Law
Philadelphia, Pennsylvania
Law Clerk
5/76-8/76
US Attorney
Providence, Rhode Island
Law Clerk
303
9/76-5/77
9/11-10/11
10/77-7/81
8/81-10/82
8/81-10/82
10/82-12/87
1/88-10/90
10/90-present
US Attorney
Philadelphia, Pennsylvania
Law Clerk
RI Hospital Trust Bank
Providence, Rhode Island
Paralegal
Rhode Island Public Defender
Providence, Rhode Island
Assistant Public Defender
Office of the Child Advocate
Providence, Rhode Island
Assistant Child Advocate
Private Law Practice
Providence, Rhode Island
Office of the Court Appointed Special
Advocate
Rhode Island Family Court
Providence, Rhode Island
Director
Office of Disciplinary Counsel
Rhode Island Supreme Court
Providence, Rhode Island
Deputy Disciplinary Counsel
Office of Disciplinary Counsel
Rhode Island Supreme Court
Providence, Rhode Island
Chief Disciplinary Counsel
Military Service: Have you had any military service?
If so, give particulars, including the dates, branch
of service, rank or rate, serial number and type of
discharge received.
No.
Honors and Awards: List any scholarships,
fellowships, honorary degrees, and honorary society
memberships that you believe would be of interest to
the Committee.
1986 Named one of the "Providence 350" in recognition
of my activities as a children's rights advocate
1987 Recipient of the "Meritorious Service to the
Children of America Award" from the National Counsel
of Juvenile and Family Court Judges
304
9. Bar Associations: List all bar associations, legal or
judicial-related committees or conferences of which
you are or have been a member and give the titles and
dates of any offices which you have held in such
groups.
American Bar Association
Rhode Island Bar Association
Rhode Island Women's Bar Association
(Vice President 1988)
Rhode Island Women Lawyers Association
(President 1981)
National Court Appointed Special Advocate Association
(Treasurer 1984-86; President 1986-88; Board Member
1988-1992)
National Organization of Bar Counsel
10. Other Memberships: List all organizations to which
you belong that are active in lobbying before public
bodies .
Urban League of Rhode Island
Please list all other organizations to which you
belong.
None
11. Court Admission: List all courts in which you have
been admitted to practice, with dates of admission and
lapses if any such memberships lapsed. Please explain
the reason for any lapse of membership. Give the sae
information for administrative bodies which require
special admission to practice.
Rhode Island* admitted 10/12/77
United States District Court, Rhode Island
admitted 11/8/77
Massachusetts* admitted 6/9/78
•Please note I am listed as voluntary inactive since I
am prohibited from practicing law outside the office
of Disciplinary Counsel.
12. Published Writings: List the titles, publishers, and
dates of books, articles, reports, or other published
material you have written or edited. Please supply
one copy of all published material not readily
available to the Committee. Also, please supply a
copy of all speeches by you on issues involving
constitutional law or legal policy. If there were
press reports about the speech, and they are readily
available to you, please supply them.
None.
«
305
13. Health: What is the present state of your health?
List the date of your last physical examination.
Excellent
January, 1993
14. Judicial Office: State (chronologically) any judicial
offices you have held, whether such position was
elected or appointed, and a description of the
jurisdiction of each such court.
None.
15. Citations: If you are or have been a judge, provide:
(1) citations for the ten most significant opinions
you have written; (2) a short summary of and citations
for all appellate opinions where your decisions were
reversed or where your judgment was affirmed with
significant criticism of your substantive or
procedural rulings; and (3) citations for significant
opinions on federal or state constitutional issues,
together with the citation to appellate court rulings
on such opinions. If any of the opinions listed were
not officially reported, please provide copies of the
opinions .
N/A
L6. Public Office: State (chronologically) any public
offices you have held, other than judicial offices,
including the terms of service and whether such
positions were elected or appointed. State
(chronologically) any unsuccessful candidacies for
elective public office.
Yes. In February, 1991, I was appointed by Governor
Bruce Sundlun to serve on the Select Commission to
Investigate the Failure of RISDIC ("Commission"). The
Commission was created by an act of the RI
Legislature. Its purpose was to investigate the
failure of the private insurer of credit union and
bank deposits which result din the closure of 45
financial institutions by the Governor. The
Commission had subpoena power, held confidential
investigative depositions, and televised public
hearings. I served on the Commission from February,
1991 until December, 1992 when we issued our final
report. I served on the Commission without
compensation.
306
17. Legal Career:
b.
Describe chronologically your law practice and
experience after graduation from law school
including:
1. whether you served as clerk to a judge, and if
so, the name of the judge, the court, and the
dates of the period you were a clerk; No
2. whether you practiced alone, and if so, the
addresses and dates;
3. the dates, names and addresses of law firms or
offices, companies or governmental agencies
with which you have been connected, and the
nature of your connection with each;
1. What has been the general character of your
law practice, dividing it into periods with
dates if its character has changed over the
years?
2. Describe your typical former clients, and
mention the areas, if any in which you have
specialized.
October, 1977 - July, 1981
Rhode Island Public
Defender
100 North Main Street
Providence, RI 02903
From October, 1977 to March, 1980, I was an Assistant
Public Defender assigned to the Juvenile Division. I
represented indigent juvenile offenders in delinquency
actions and indigent adult offenders charged with
civil child abuse and neglect. From March, 1980 to
July, 1981, I was supervising attorney of the Juvenile
Division. In addition to maintaining a full caseload,
I supervised four attorneys, two clerical workers, and
an investigator.
August, 1981 - October, 1982 Assistant Child
Advocate (part-time)
Office of the Child
Advocate
260 West Exchange Street
Providence, RI
I was responsible for reviewing placements of children
in the care of the Department for Children and Their
Families, and representing the Child Advocate before
the Family Court. I left the Child Advocate's office
when I was appointed Director of the CASA program.
307
August, 1981 - October, 1982 Private Practice
My practice consisted primarily of guardianships in
domestic relations cases before the Family Court.
Office Address:
27 Prudence Avenue
Providence, RI
October, 1982 - December, 1987 Director
Court Appointed
Special Advocate
Program
Rhode Island Family
Court
One Dorrance Plaza
Providence, RI 02903
I had full administrative responsibility for the CASA
Program. I supervised a staff of five attorneys,
three social workers, three coordinators, and four
secretaries. I also recruited and trained more than
200 volunteer CASAs who together with our professional
staff represented the best interests of abused and
neglected children before the Family Court. I
maintained a case load which required frequent
appearances before the Rhode Island Family Court.
January, 1988 - October, 1990 Deputy Disciplinary
Counsel
Rhode Island Supreme
Court
250 Benefit Street
Providence, RI 02903
I was responsible for the investigation and
presentation of complaints to the Disciplinary Board.
I also prosecuted several formal matters before the
Board. In September, 1989, upon the resignation of
former Judge Fuyat, and at the direction of the Chief
Justice, I conducted the investigation of Judge
Fuyat 's borrowing money from attorneys who appeared
before him. I drafted the petitions for formal
disciplinary action, prepared memoranda, and tried
each of the 30 cases presented to the Disciplinary
Board and the Rhode Island Supreme Court.
308
October, 1990 - present Chief Disciplinary
Counsel
RI Supreme Court
24 Weybosset Street
Providence, RI 02903
I have full administrative responsibility for the
Office of Disciplinary Counsel. I supervise four
attorneys, a confidential investigator, and four
secretaries. I continue to try formal disciplinary
matters before the Board and to present cases before
the Supreme Court.
c. 1. Did you appear in court frequently,
occasionally, or not at all? If the frequency
of your appearances in court varied, describe
each such variance, giving dates.
Frequently
2. What percentage of these appearances was in:
(a) federal courts
0%
(b) state courts of record;
100%
(c) other courts
0%
3. What percentage of your litigation was:
(a) civil
1977-81 30%
1981-present 100%
(b) criminal
1977-81
70%
309
4. State the number of cases in courts of record
you tried to verdict or judgment (rather than
settled), indicating whether you were sole
counsel, chief counsel, or associate counsel.
From October, 1977 through July, 1981, I
served as an Assistant Public Defender. My
caseload included status offenses,
misdemeanors, felonies, and civil child abuse
and neglect cases. I conservatively estimate
that I tried at least 100 cases to conclusion,
including a first degree murder case. With
the exception of the murder trial, I was sole
counsel.
From October, 1982 through December, 1987, I
represented abused and neglected children in
trials and review hearings before the RI
Family Court. My representation in those
cases was as a guardian ad litem. In that
capacity, I participated fully in trial,
conducting direct and cross-examination of
witnesses. Again, in this capacity I
conservatively estimate having participated in
at least 50 trials as sole counsel.
From 1988 to the present, I have tried
approximately 40 attorney discipline cases
before the Rhode Island Supreme Court
Disciplinary Board. (Board) The Board is an
administrative adjudicative body. Contested
matters are tried in accordance with the
Board's Rules of Procedure and the Rhode
Island Rules of Evidence. In addition, I
appear before the Rhode Island Supreme Court
on a regular basis at disciplinary show cause
hearings .
5. What percentage of these trials was:
(a) jury
0%
(b) non-jury
100%
310
18. Litigation: Describe the ten most significant
litigated matters which you personally handled. Give
the citations, if the cases were reported, and the
docket number and date if unreported. Give a capsule
summary of the substance of each case. Identify the
party or parties whom you represented; describe in
detail the nature of your participation in the
litigation and the final disposition of the case.
Also state as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge
or judges before whom the case was litigated; and
(c) The individual name, addresses, and telephone
numbers of co-counsel and of principal counsel
for each of the other parties.
1) Carter v. Kritz 560 A2d 360 (RI 1989)
Kritz is an attorney misconduct case. The case is
significant because it is the first case in RI brought
against an attorney for sexual misconduct with his
clients. I prosecuted this case for the office of
Disciplinary counsel. I interviewed each of the
victims and prepared them to testify. On the day of
the hearing, Mr. Kritz admitted all factual
allegations and rule violations. The Board found that
Mr. Kritz had used his position as an attorney to take
advantage of his clients and recommended that he be
suspended from the practice of law for not less than
one year. The Supreme Court concurred.
Dates of trial: 11/8/88; 1/18/89; 3/6/89
Judge: This case was tried before a three-member
panel of the RI Supreme Court Disciplinary
Board. The panel members were: Marifrances
McGinn, Esquire, Robert Kilmarx, Esquire, and
N. Jameson Chace, Esq.
Co-counsel: None
Respondent's counsel: William A. Dimitri, Jr., Esq.
733 Douglas Avenue
Providence, RI 02908
(401) 273-9092
10
311
2) Carter v. Peotrowski 568 A2d 1032 (RI 1990)
Upon my appointment as Deputy Disciplinary Counsel, I
was assigned to conduct an investigation of Mr.
Peotrowski 's fitness to practice law in conjunction
with his Petition for Reinstatement. Mr. Peotrowski
had been disbarred in 1982 and had served a prison
term for obtaining money under false pretenses and
forgery. My investigation revealed that Mr.
Peotrowski had, since his disbarment, engaged in the
unlawful practice of law, had used the name of a
fictitious or deceased person who was purported to
have given him powers of attorney in connection with
several petitions filed in the Courts, and he had
misrepresented facts to the courts. I presented all
of this information to the Board during a three day
trial. In addition, I tried three other petitions
alleging misconduct which had remained in a pending
status since the order of disbarment entered. The
Board found that Mr. Peotrowski 's readmission would be
detrimental to the integrity of the bar and to the
public interest. In its recommendation to the Court,
the Board advised that not only should the Petition
for reinstatement be denied, but that Mr. Peotrowski
never be allowed to practice law again. The Court
denied the Petition for Reinstatement.
This case is significant because it sets forth the
standard for readmission after disbarment. As a
result of my work on this case, I developed a
Reinstatement Protocol for the office of Disciplinary
Counsel. The Protocol is used in every reinstatement
case to insure a thorough, uniform investigation and
report.
Dates of trial: 3/16/89; 4/5/89; 4/20/89
Disciplinary Board Members: Ralph P. Semonoff
(deceased)
N. Jameson Chace, Esq.
James V. Aukerman, Esq.
Co-counsel: None
Respondent's Counsel: John H. Ruginski, Jr., Esq.
1 Park Row
Providence, RI 02903
(401) 272-7966
11
312
3) Lisi V. Hines 610 A2d 113 (RI 1992)
This is an attorney discipline case. Mr. Hines was
under suspension at the time of the trial of this
matter. In this case, Mr. Hines had failed to turned
over to his client $10,000 which he was holding in
escrow. Mr. Hines admitted that he had converted the
money to his own use. Mr. Hines did make restitution
prior to the trial. I argued that the proper sanction
should be disbarment, especially in view of the fact
that Mr. Hines was currently under suspension for two
other findings of misconduct. The Board and the court
agreed. Mr. Hines remains disbarred.
Dates of trial: 7/16/91
Disciplinary Board Members: Carol A. Zangari, Esq.
Diane Finkle, Esq.
R. Kelly Sheridan, Esq.
Co-counsel: None
Respondent's Counsel: Mr. Hines was pro se. Current
address and phone number are
unknown.
12
313
4) In Re Crystal. Joshua and Jacqueline A. 448 A2d 1226
(RI 1982)
This case was a civil child dependency case based on
the mother's psychiatric condition. The trial Judge
found no evidence of abuse or neglect but did find
that the children were dependent. The basis of the
Judge's finding was that the mother had had a history
of mental disorder and that there was a great
possibility that she would have another psychotic
episode. A psychiatrist testified that the mother
could not adequately care for her children while she
experienced such episodes.
I represented the mother in this case. The trial
Judge found that there was a "strong possibility" that
the children would suffer physical and mental harm if
returned to the mother even though he agreed that the
mother had made progress, that she was trying to
improve the situation, and that she had enlisted the
assistance of her own father to care for the children.
On appeal, the Supreme court affirmed the trial
Judge's finding. This case refined the standard in
dependency cases of what constitutes evidence that the
child is "likely to suffer physical and/or emotional
harm. "
Dates of trial: July, 1980
Judge and Court: Hon. Robert G. Crouchley, RI Family
Court (Ret.)
Co-Counsel: None
Counsel for the State: Thomas M. Bohan
Department for Children Youth &
Family
610 Mount Pleasant Avenue
Providence, RI
(401) 457-4718
13
314
5) Tn Re Francis J 456 A2d 1174 (RI 1983)
Francis was 17 years old at the time she was charged
with first degree murder. Because of her age, she was
tried in the RI Family Court as a juvenile. Francis
was alleged to have stabbed to death a woman outside
the door of Francis' apartment. Francis gave a
statement to the police admitting that she had stabbed
the decedent. At trial, Francis testified that
another person stabbed the woman and that individual
had asked Francis to assume responsibility because she
would be treated less harshly as a juvenile than the
other person would be as an adult.
The trial Judge did not find Francis credible. He
adjudicated her delinquent by reason of an act that
would have constituted murder if committed by an
adult. Francis was sentenced to the Training School
until her 21st birthday.
A significant issue we raised in this case was whether
Francis' confession should be suppressed on the
grounds that she had not had an opportunity to consult
with her mother in private before giving her statement
to the police. The Supreme Court held that the
confession was admissible and denied the appeal.
I and another assistant public defender worked on this
case. During trial, I conducted the direct
examination of Francis.
Date of trial: 10/79
Judge and Court: Hon. Edward P. Gallogly (Ret)
RI Family Court
Co-counsel: John E. Farley, Esq.
Assistant Attorney General
72 Pine Street
Providence, RI 02903
(401) 277-2424
Prosecutor: Edward DiPippo
422 Broadway
Providence, RI
(401) 861-5500
14
315
The following five cases were tried separately before the
RI Supreme Court Disciplinary Board and presented
separately before the RI Supreme Court. The Court opinion
consolidates them along with several others that I also
tried under the caption Lisi v. Several Attorneys 596 A2d
313 (RI 1991) . I had been assigned full responsibility for
investigation, preparation of charges of formal
disciplinary action, trial, memoranda, and presentation to
the RI Supreme Court of the matters reported in Lisi v.
Several Attorneys. These were cases of first impression in
Rhode Island. The Court found that the attorneys had
prejudiced the administration of justice by loaning money
to a Family Court Judge before whom they appeared. The
Judge was removed from the bench and disbarred before the
trials of these matters took place.
6) In the Matter of Gordon & Levitt. See Lisi v. Several
Attorneys. 596 A2d 313 (RT 1991) Gordon and Levitt
were partners in a law firm. Gordon practiced before
the RI Family Court on a regular basis. From 10/88 to
7/89, he was attorney of record and trial counsel in
seventeen domestic relations cases which appeared on
the calendar of then Family Court Judge Fuyat.
Included among those seventeen cases was a hotly
contested matter, the trial of which took 24 days.
One of the issues before the Judge was Gordon's
petition for attorneys' fees totalling approximately
$120,000. Five days before the trial started, Gordon
met privately with the Judge and agreed to give the
Judge a $4,000 check drawn on his firm client's
account in exchange for the Judge's post-dated check.
While the trial was in progress, the Judge asked
Gordon if his firm would represent Fuyat with regard
to a pending refinance of the Judge's home. Gordon
agreed and directed the Judge to call his partner,
Levitt. Levitt spoke with the Judge and agreed to
represent him. A few days later, however, the Judge
called to say that the financing had been delayed.
The Judge inquired if Levitt could arrange a "bridge
loan". Levitt then arranged a loan of $20,000, using
funds of a real estate business in which he, Gordon,
and other non-attorneys were partners. Levitt was
aware of Gordon's trial before Fuyat and the petition
for attorneys* fees. Neither Gordon or Levitt
informed opposing counsel of their financial dealings
with the Judge. The Judge was removed from the bench
prior to rendering a decision in the case.
I prosecuted this case for the Office of Disciplinary
Counsel. Mr. Gordon was suspended for a period of one
year. Mr. Levitt was suspended for period of six
months.
Trial dates: 1/8/91
15
316
Disciplinary Board Members:
Hon. William C. Hillman
(now U.S. Bankruptcy Court
Boston)
Lester Salter, Esq.
E. Rowland Bowen, Esq.
Respondent's counsel: Gordon;
John A. Tramonti, Jr.
808 Hospital Trust Bldg,
Providence, RI 02903
(401) 751-5433
Levitt; Stephen J. Fortuanto
The Summit East
Suite #310
300 Centerville Road
Warwick, RI 02886
(401) 737-7200
7) In the Matter of Chace & Forte See Lisi vs. Several
Attorneys. 596 A2d
before a specially
Disciplinary Board
assigned by the RI
served as a member
313 (RI 1991) This case was tried
constituted panel of former
members. The special panel was
Supreme Court because Mr. Chace had
and as Chairman of the Disciplinary
Board during the investigation and at the time of the
commission of the acts under investigation by the
office of Disciplinary Counsel Judge Forte is and was
at the time of the hearing a Family Court Judge. He
had previously been Chace 's law partner.
Prior to Forte's appointment to the bench, he was
responsible for the firm's domestic relations
practice. While he had cases pending before Fuyat, he
agreed to arrange a loan for the Judge. The source of
the loan was Chace' s family business. Neither Chace
nor Forte advised opposing counsel of the loan.
Shortly after arranging the loan. Forte agreed to make
an investment with Fuyat in a real estate venture.
Forte gave Fuyat a check for $20,000 as his share in
the purported investment. Again, Forte did not advise
opposing counsel of this arrangement.
Chace was suspended for a period of 30 days
was publicly censured.
Forte
Dates of trial
11/2/90
Disciplinary Board Members:
Co-counsel
None
Hon. William C. Hillman
(now U.S. Bankruptcy Court
Boston)
Lester H. Salter, Esq.
Charles H. Anderson, Esq.
16
Respondent's counsel
317
Joseph A. Kelly, Esq.
155 South Main Street
Providence, RI 02903
(401) 331-7272
8) In the Matter of Toro. See LJSi vs . Several
Attorneys. 596 A2d 313 (RI 1991) Mr. Toro made three
five thousand dollar loans to former Judge Fuyat
between 10/87 and 12/88. Throughout that period of
time, Toro continued to appear before the Judge, but
he never advised opposing counsel of his loans to the
Judge.
Mr. Toro was publicly censured.
Date of trial: 10/30/90
Disciplinary Board Members
Hon.
Edward
C.
Clifton
(now
Judge,
RI
District
Cour
t)
Mari
f ranees
McGinn, Esq.
Mari
lyn Shannon-McConaghy,
Es
q.
Co-counsel :
None
Respondent's counsel:
9)
Joseph A. Kelly, Esq.
155 South Main Street
Providence, RI 02903
(401) 331-7272
In the Matter of Comolli. See Ljgi vjSt Several
Attorneys. 596 A2d 313 (RI 1991) Mr. Comolli made
three loans to former Judge Fuyat totalling $15,000.
The first loan was made in the Judge's chambers at the
conclusion of several matters Mr. Comolli had handled
for the Bureau of Family Support. Mr. Comolli
admitted that at the time he made that loan he could
foresee that he would appear before Fuyat on a
contested matter at some point in the future. Even
though Mr. Comolli had been told by a senior partner
that the first loan was "incorrect", Mr. Comolli made
two more loans.
Mr. Comolli was suspended for 30 days.
Date of trial: 11/15/90
Disciplinary Board Members: Ralph P. Semonoff
(deceased)
Carol A. Zangari, Esq.
E. Howland Bowen, Esq.
Co-counsel: None
17
318
Respondent's counsel: Thomas J. Liguori, Esq.
P.O. Box 1277
855 Beach Street
Westerly, RI 02891
(401) 596-7751
10) In the Matter of Newman. See Lisi vs. Several
Attorneys. 596 A2d 313 (RI 1991) Mr. Nevnnan made an
$8,500 loan to Judge Fuyat which was never repaid.
During the time the loan remained outstanding, Mr.
Newman had approximately 80 cases on Judge Fuyat 's
calendar. Mr. Newman never asked the Judge for
repayment nor did he advise opposing counsel of his
loan to the Judge.
Mr. Newman was publicly censured.
Date of trial: 10/18/90
Disciplinary Board Members: George Salem, Esq.
E. Howland Bowen, Esq.
Carol A. Zangari, Esq.
Co-counsel: None
Respondent's counsel: Thomas J. Liguori, Esq.
P.O. Box 1277
855 Beach Street
Westerly, RI 02891
(401) 596-7751
19. Legal Activities: Describe the most significant legal
activities you have pursued, including significant
litigation which did not progress to trial or legal
matters that did not involve litigation. Describe the
nature of your participation in this question, please
omit any information protected by the attorney-client
privilege (unless the privilege has been waived.)
In 1992, the RI Supreme Court voted to adopt the
recommendations of the RI Supreme Court Ethics Task
Force as those recommendations related to attorney
disciplinary procedure. I appeared before the Task
Force and the Court to advocate adoption of most of
the ABA'S McKay Commission recommendations. The Court
did promulgate new rules which bring Rhode Island in
substantial conformity with the recommendations of the
ABA. In particular, the rules now require the
participation of non-attorney members of the
Disciplinary Board and publication of formal charges
of misconduct upon a finding of probable cause by the
Board. I drafted the rule amendments at the request
of the Court.
18
319
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated
receipts from deferred income arrangements, stock,
options, uncompleted contracts and other future
benefits which you expect to derive from previous
business relationships, professional services, firm
memberships, former employers, clients, or customers.
Please describe the arrangement you have made to be
compensated in the future for any financial or
business interest.
Rhode Island State Employers Retirement Fund $47,197
Lincoln National Life Insurance Company Deferred
Compensation $11,757
The amounts reported represent my contribution to the
funds .
I intend to remove the funds from the Rhode Island
State Employees Retirement Fund upon my resignation
from state service. Those funds will be re-invested
in a qualified retirement plan.
I do not anticipate receipt of the Lincoln National
funds until retirement.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the
categories of litigation and financial arrangements
that are likely to present potential
conf licts-of-interest during your initial service in
the position to which you have been nominated.
I will recuse myself from any involvement in matters
where my husband's law firm has any interest and/or
participation.
I intend to follow the mandates of the Code of
Judicial Conduct in any situation likely to present
any potential conflict of interest.
Do you have any plans, commitments, or agreements to
pursue outside employment, with or without
compensation, during your service with the court? If
so, explain.
No.
19
320
List sources and amounts of all income received during
the calendar year preceding your nomination and for
the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties,
patents, honoraria, and other items exceeding $500 or
more (If you prefer to do so, copies of the financial
disclosure report, required by the Ethics in
Government Act of 1978, may be substituted here.)
Copy of Financial Disclosure Report attached.
Please complete the attached financial net worth
statement in detail (Add schedules as called for).
Attached
Have you ever held a position or played a role in a
political campaign? If so, please identify the
particulars of the campaign, including the candidate,
dates of the campaign, your title and responsibilities
No
20
321
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American
Bar Association's Code of Professional Responsibility
calls for "every lawyer, regardless of professional
prominence or professional workload, to find some time
to participate in serving the disadvantaged."
Describe what you have done to fulfill these
responsibilities, listing specific instances and the
amount of time devoted to each.
While still in law school, I volunteered with the
Defender Association of Philadelphia to work with
indigent juvenile offenders.
In 1984, I was elected Treasurer of the National Court
Appointed Special Advocate Association. After serving
two years as Treasurer, I was elected to a two year
term as President. I went on to serve four more years
as a director of the Association. The National CASA
Association is a non-profit membership organization
dedicated to providing abused and neglected children
with trained volunteer advocates in the Juvenile and
Family Courts throughout the United States. The
Association has been recognized by the White House
(1986 recipient of the "President's Volunteer
Recognition Award") and child advocacy organizations
for the excellent work it does. As an officer and
director of the Association, I participated in setting
policy and direction and represented the Association
at numerous national and local conferences. I
continue to donate time to the Association on an as
needed basis.
From 1987 to 1990, I served as a member of the Board
of Directors of the Urban League of Rhode Island.
From 1988 to 1991, I served as a Volunteer Judge in
the Mock Trial Competition for junior and senior high
schools sponsored by the Rhode Island Legal/Education
Partnership.
From 1989 to 1991, I served as a member of the Board
of Directors of the Ocean State Adoption Resource
Exchange.
In addition to the volunteer activities listed above,
my entire professional career has been dedicated to
public service.
21
322
The American Bar Association's Commentary to its Code
of Judicial Conduct states that it is inapproprate for
a judge to hold membership in any organization that
invidiously discriminates on the basis of race, sex,
or religion. Do you currently belong, or have you
belonged, to any organization which discriminates —
through either formal membership requirements or the
practical implementation of membership policies? If
so, list, with dates of membership. What you have
done to try to change these policies?
From 1989 to August, 1993, my husband and I held a
family membership at Potowomut Golf Club in East
Greenwich, RI . The club does not restrict or exclude
membership on the basis of race, sex, or religion;
however, there were rules and policies which
disparately affected female members. Specifically,
women were excluded from one of the grille rooms and
women had restricted access to tee times. Prior to my
resignation in August, 1993, the club had taken
several steps to address and remedy the situation.
In June of 1993, I wrote to the Board of Governors
urging them to take action to eliminate the
discriminatory policies described above. In July of
1993, I appeared before the Board and reiterated my
objection to those policies and asked that the Board
adopt the recommendations to eliminate inequitites in
membership which had been developed by the Long Range
Planning Committee. In August of 1993, my husband and
I resigned from the club.
Shortly after our resignation from membership, the
Board adopted a resolution to open the grille room to
all members. The Board also voted to recommend to the
membership that changes be made in the club by-laws to
eliminate gender based access to tee times. The
membership ratified those by-laws changes at the
annual meeting held on January 27, 1994.
Is there a selection commission in your jurisdiction
to recommend candidates for nomination to the federal
courts? If so, did it recommend your nomination?
Please describe your experience in the entire judicial
selection process, from beginning to end (including
the circumstances which led to your nomination and
interviews in which you participated) .
There is no selection commission in my jurisdiction.
In March, 1993, I wrote to Senator Claiborne Pell to
express my interest in appointment to the U.S.
District Court. I met with Senator Pell and his
staff. We discussed my educational background, trial
experience, and administrative experiences. I had a
second interview with Senator Pell and his staff where
22
323
we discussed my qualifications in greater detail. I
provided Senator Pell with the names of individuals
who are knowledgeable about my legal ability and my
integrity.
After Senator Pell recommended my nomination to the
President, I was interviewed by agents of the FBI and
staff from the United States Department of Justice. I
was also interviewed by members of the ABA Standing
Committee on the Federal Judiciary.
Has anyone involved in the process of selecting you as
a judicial nominee discussed with you any specific
case, legal issue or question in a manner that could
reasonably be interpreted as asking how you would rule
on such case, issue, or question? If so, please
explain fully.
No.
Please discuss your views on the following criticism
involving "judicial activism."
The role of the Federal judiciary within the Federal
government, and within society generally, has become
the subject of increasing controversy in recent
years. It has become the target of both popular and
academic criticism that alleges that the judicial
branch has usurped many of the prerogatives of other
branches and levels of government.
Some of the characteristics of this "judicial
activism" have been said to include:
a. A tendency by the judiciary toward
problem-solution rather than grievance-resolution;
b. A tendency by the judiciary to employ the
individual plaintiff as a vehicle for the
imposition of far-reaching orders extending to
broad classes of individuals;
c. A tendency by the judiciary to impose broad
affirmative duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
e. A tendency by the judiciary to impose itself upon
other institutions in the manner of an
administrator with continuing oversight
responsibilities .
23
324
The federal judiciary must look to Article III of the
United States Constitution and the acts of Congress
for the parameters of its authority. A federal judge
does not make law or policy. Those responsibilities
and powers are vested in the Congress and the
Executive Branch. The responsibility of a federal
judge is to find facts and apply the law as enacted by
Congress and in keeping with the interpretation of the
law by the appellate courts.
The judge must at the outset of litigation make
findings as to the standing of the parties, and a
determination as to whether there exists a concrete,
definite, real dispute which may be redressed by an
order of specific relief from the Court.
A federal district court judge is ill-equipped to
serve as an "administrator with continuing oversight
responsibilities'*. However, the judge, in deciding an
actual case or controversy may nonetheless affect the
way in which those individuals who are responsible for
the internal administration of organizations or
institutions which may be before the court, will
comply with the orders of the court.
24
325
AFFIDAVIT
I, Mary M. Lisi, do swear that the information provided in
this statement is, to the best of my knowledge, true and
accurate.
January 31, 1994 ^^/Jn^^y /h o^/^^^V
Mary J^.'^Lisi'^
Notary /
Sharon 6. Rtzpalricfc
Kiy Cc r.m:33.'sn &^«"k .luiy to 1995
FINANCIAL DISCLOSURE REPORT (cont'd)
326
Mam of Parsoo Raportlog
Lisi, Mary M.
D«t« of Kaporc
1/31/94
IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.
(Includes those to spouse and dependent children; use the parentheticals '(S)" and '(DC)" to Indicate reporteUe
reimbursements and gifts received by spouse and dependeot children, respectively. See pp.l3-lS of Instnictloai.)
SOURCE DESCRIPTION
n
NONE (No aucb rapor^Abla rslAburaaasnta or gifta]
Exenpt
V. OTHER GIPTS. (includes those to spouse and dependent children; use the parentheticals "(S)' and "(DC)' to
Indicate other gifts received by spouse and dependent children, respectively. See pp.15-16 of Instructions.)
SOURCE DESCRIPTION VALUE
n
NONE (Mo auch rapoPtable glfta)
Exenpt _^_ $_
$_
$_
$
VI. LIABILITIES, (includes those of spouse and dependent children; indicate where applicable, person responsible
for liability by using the parenthetical "(S)" for separate liabilitv of spouse, "(J)" for joint liability of reporting
individual and spouse, and "(DC)" for liability of a dependent child. See pp.16-18 of Instructions.)
CREDITOR DESCRIPTION VALUE CODE*
X NONE (Mo raportabla llabllltlaal
VlkUil CODtS: J - S15.00O or laaa I • 515,001 to 150,000 L - 550,001 to 5100,000 H - 5100.001 to t»0,OOO
R - 5250,001 to 5500,000 O - 5500,001 to 51,000,000 P - Mora thai) 51,000,000
327
Httas of P«raoQ Raporcing
OMtm of toport
FINANCIAL DISCLOSURE REPORT (conl'd)
Lisi, Mary M.
1/31/94
VII. INVESTMENTS and TRUSTS - income, value, transactions, (includes those of spouse
and dependent children; sec pp. lft-27 of Instnictioos.)
p»»crlptXon of AAS«ta
(iDCludLng truac UMta)
lAdicata, ««bar« appllcabla, ownar oi
tb« «a*«c by using Uia nsrantiia^acal
•(J)* for iolnt ownaraSlp of raport-
iiig ln<llvi3ual and apooaa, "(S)" for
a«paxat« o»*TiaralLlp by apouaa, '(DC)"
for ownarahip by Sapandaat child,
Plaea '(X)* afrsr each a«a«t
axopt Cros prior dlacloaux*.
durlno
e.
Oroaa valQa
at and of
D.
Tranaactlona during raporttog pftrlod
CD
Aat.,
(»-a)
(2)
dlv. ,
rant or
iMt.y
(1)
Valna^
Coda'
(J-P)
12)
»aliia
Mathod-,
Coda^
(Q-X)
A.
buy.aall,
■argar,
radamp-
tlon)
If Dol axaapc troB diacloaur* 1
iiia:J
Day
(3)
(J-P)
(4)
OalD,
Coda*
(»-a)
Ui privsta
traaMmtloB)
NONE (No raportAble
IncoB*. aaaata, or
' Lincoln National Life Ins,
C>eferred Conpensation
A
Int
J
T
Exempt
^ RI State Employees
Rptirprrpnt Fiinri
ft
None
K
T
Exempt
^ Fleet National Bank
Providence. RI CD (Jl
A
Int
J
T
Exempt
* Citizens Bank, Prov., RI
a
Jrit
T
T
fii^seesufif^' p'^°yjt ^
A
Int
J
T
Exenpt
6 Nuveen Insured Municipal
Bond Fund (J)
A
Div
J
T
Exempt
' Citizens Bank, Prov., RI
A
Int
J
T
' Citizens Bank, Prov., RI
P
Int
J
T
Exempt
401-K (S)
A
Int
J
T
Exerrpt
10
Target Benefit Plan (S)
A
Int
K
T
Exempt
11
" Real Estate 'See VIII
rtiniaj piririHa ';7q,ifin
a
Mnnp
K
S
Fxpmpt
" §i5igag=A§g?^*.iii^viiF
A
Int
K
T
Exenpt
i<
15
16
17
18
19
20
I IncoM/Ciln CoOat: »-Sl,000 or !••• B-S1,001 to 52,500 C-S2.501 to 5,000 0*55,001 to 515.000
ISaa Col. Bl t Dtl E-S15,001 to 550,000 F-550.001 to 5100,000 0-5100,001 to 51,000.000 e-Hora than 51. 000, 000
2 Valua Codaa: J-515.0CK1 or iaaa K-515,001 to 550.000 L-S50,OQ1 to 5100,000 M-5100,001 to si^0,000
•Sfm r-ii ?' « ?"!' ^.^..c^ -^. ^ 5500.000 OS500.001 to 51,000,000 P-Mora tiian 51,000,000
J ,a-oo .lataoo ..ooaa: Q-Appr«l»ai ft-Coat ( raal aatate only) S^Assasafflent T=Caeh/Mar)tet
(S«a Col. C2) U-Boolc Valua v^Ottisr W-Estunatad
328
FINANCIAL DISCLOSURE REPORT (cont'd)
«■• ot P*rsoQ fiaportiog
Llsi, Mary M.
D«ta of ■■pore
1/31/94
VIII. ADDITIONAL INFORMATION or EXPLANATIONS. (HxUck p«i or Report.)
*Real Estate - Dania. Florida. This is my father's residence. The property is held
as a joint tenancy with hijn.
**Citizens Bank - Savings Account. This is a joint savings account vd.th my father.
The funds are his.
IX. CERTIFICATION.
In compliance with the provisions of 28 U.S.C. § 455 and of Advisory Opinion No. 57 of the Advisory Committee on
Judicial Actrviijes, and to the best of my knowledge ai the time after reasonable inquiry, I did not perform any adjudicatory
function in any litigation during the period covered by this report in which I, my spouse, or my minor or dependent dtiktreo
had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I certify that all information given above (including information peruining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was
withheld because it met applicable statutory provisions permitting non-disclosuie.
1 funher certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.C-A. app. 7, § 501 et. seq., 5 U.S.C. 5 7353 and Judicial Conference
regulations.
Signature
'\ yyiyi^jA/h r7)t4^
Date
^^^^v
5IVL3U/
NOTE; ANY INDIVIErtJAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA. APP. 6. S 104. AND 18 U5.C % lOOL)
FILING INSTRUCTIONS:
Mail signed original and 3 additional copies to:
Judicial Ethics Cdmminee
Administrative Office of the
United Slates Courts
Washington, DC 20S44
X
/
329
MARy-M* LISI
FINANCIAL STATEMENT
NET WORTH
As Of December 31, 1993
Pfovidi • complete. Cvrrtnl fintnciil net worth iHlwnenl which iltmliei In ddijl ill iticli (indutfir.
lecounll. r»jl »iUt». ^^eufiiiet. Iivili. invt«lm«nl». »«* other (intncid hokJInn) (l| li«bili|it} (includin{
mstgij". 'M"». '"^ o">«' (injftciti ebligationi) of jroufieil. your ipouj«. mi olhtf ImmtdUto memt
your houtthoid.
^
ASSCTS
|| UABlimCt
C4«h en htntf «Ad In b«nkj
Uli»4 MCwnDn — •dd tcht^ut*
Uniir<« MCuntiM — idd *e^•dul•
Aeccuna *i>C noln r*ciiviMi:
O^a from rtli^v•t trtd tn'trtdi
Ow* from o<hfr«
Oogttful
K K««i ntjtf mcrtiain rtctivtbT*
Ctin vil»»« r.ft lAiurir><i
i Caiipensation Lincoln National
7qR7i
MD
1 NolM Nr«bla to 6lr<li»— t«curo4
No<«> Mr'bia to b«nb— u^ucurW
C
Ol
0
00
00
■oo
i
0?
1 N«tt» pjnbl* Is olhtn
0
Ol
2800
0
HI
0
Accmna ir^a Mm ou*
Unpild Ineem* Iji
OtKor urtMld t«l trtd fntaml
Rtal Mint metlitn payaM»— «M
Khadulo
Qvlttcf mortsagri an^ oartar flana
Olht< daM»--tltmlit:
n
N/A
II
0
p
Jl
N/A
—
132000
^^»
N/A
0
350000
00
0
—
~ *^3HH
0
00
0
'^'raBJBi
^BBoo
n
np
Deferre;
11757
IJI?
— •
RI St^
kuipioyees Ketirement Fund
47197
00
-nn
•
Nuvee^
ensured Municipal Bond f\ind
1397?
ToUl lUbKiliM
132000
441066
IRAs
i7nq
Ml
Ji
bee bcn^uje^i^tached
. 57306A
T«jl ntblllUn iivd htl »or»n
()
573066
0
COKTlNStNT UASlllTltS
CtNOUl INrORMATION
Ax m<^aor\*r. cor^lktr or r^jtrantor
On tuMt or cont/ictl
PvW•ft•or^ for fwCtr^t tnccmt Tal
OP»r l^fclil dabi
0
00
A/a artr UwQ »Ia<f|a^ (U4 KhaO-
Ult.)
Aro fov da(«r%darrt In «ny witi or
l*(ti tctienti'
Haol >ou *««r bUn bartiAipic})
. t^O.,
0
00
0
00
Yes
0
06
No
n
nn
■
0
.20.
330
MARY M. LISI
ASSETS
401K 6,000.00
Target Benefit Plan 22,400.00
Joint Savings Account
with Mary Lisi's father 22,000.00
(these are my father's funds)
*Real Estate Owned
Residence: 355 Stone Ridge Drive
East Greenwich, RI 02818
(tenancy by the entirety)
Approximate Value: $325,000.00
59 Catcay Court
Dania, PL 33004
(joint tenancy with my father;
this is his residence)
Approximate Value: $25,000.00
LIABILITIES
Real Estate Mortaaaes Payable
Citizens Mortgage Corporation
mortgage on 355 Stone Ridge Drive
East Greenwich, RI 02818
Balance as of 12/31/93: Approximately $118,000.00'
Citizens Bank Equity Mortgage
mortgage on 355 Stone Ridge Drive
East Greenwich, RI 02818
Balance as of 12/31/93: Approximately $14,000.00
331
FINANCIAL DISCLOSURE REPORT
Kaport ll*q\ilr«d by tbm ttlilCB
R«Cor» Act oC 1989, Pub. L. Bo.
101-194, lovnitMr 10, 1M9
(5 U.S.C.A. App. 6, fSlOl-112)
1. PaxsoQ fUporclng [Lmaz o«a*, Clrst, Klddla inltl*l]
Lisi/ Mary M.
2. Court or Organization
United States District Court
District of Rhode Island
3. Dat« of toport
1/31/94
4. Tltla {Axxlcl* III judgas iDdlcats acrlva or
••Qlor atacua; Hagiarraca judgaa Ijidlcata
full- or parx-tlaa]
Nominee - United States District
Court Judge
S. Raport Typa (cback approprlata cypa)
X »o»lnatlon. Data 1/27/94
X Initial Annual Pinal
6. Raportlng Parlod
January 1, 1993 -
January 14, 1994
7. Cbaabara or Offlca Addraaa
24 Weybosset Street
Providence, RI 02818
8. On Uia baala of thm Information contalnad In thla Ksport, It
la, In By opinion. In coBpllanca wltil appllcabla lawa and
ragulatlona
Ravlawlng Offlcar Signatura
IMPORTANT NOTES: The insmictions accompanying this form must be followed. Complete all pafts,
cfaeddng the NONE box for each section where you have no reportable inronnation. Si^ on last page
I. POSITIONS. (Reporting individual only, see pp. 7-8 of Instruaions.)
POSITION NA.ME OF ORGANIZAnON/ENTTTY
n
NONE (Ho raportabla poaltlooa)
Director
National Court Appointed Special Advocate
Association, Seattle, Washington
II. AGREEMENTS. (Reponing individual only; see p. 8-9 of Instnictions.)
DATE PARTIES AND TERMS
□
NONE (Ko raportabla agraaaanta)
NON-INVESTMENT INCOME. (Reponing individual and spouse; see pp. 9-12 of Instructions.)
n
DATE
SOURCE AND TYPE
NONE [Do raportabla noo-lnvaitoaot Incooe)
GROSS INCOME
(youR, not spouse's).
1992
19S3
1994
1992
1993
State
of
Rhode
Island
- Chief
Disciplinary
Counsel
State
of
Rhode
Island
- Chief
Disciplinary
Counsel
State
of
Rhode
Island
- Chief Disciplinary
Counsel
Blish
&
:avanaqh - Attorney
Blish & Cavanagh - Attorney
$ 65,515.90
$ 71,669.18
$ 2,171.28
S (s)
$ (s)
1994
Blish & Cavanagh - Attorney
(s)
332
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names Used.)
Willie Louis Sands
2. Address: List current place of residence and office address(es).
Home: 1657 Twin Pines Drive
Macon, Georgia 31211
Office: Room 310
Bibb County Courthouse
661 Mulberry Street
Macon, Georgia 31201
3. Date and place of birth.
April 12, 1949; Bradley, Jones County, Georgia
Marital Status (include maiden name of wife, or husband's name). List
spouse's occupation, employer's name and business address(es).
Married. Spouse: Karia Jonita Heath-Sands
Occupation: Community Service Director/TV Weathercaster
Employer: WMAZ T.V.
P.O. Box 5008
Macon, Georgia 31213
Education: List each college and law school you have attended, including
dates of attendance, degrees received, and dates degrees were granted.
Mercer University, 9/67 - 6/71
B.A. Degree (Double Major): (June 6, 1971)
(a) Political Science
(b) Music
Walter F. George School of Law, 8/71 - 6/74
Juris Doctor Degree (June 2, 1974)
Employment Record: List (by year) all business or professional corporations,
333
companies, firms, or other enterprises, partnerships, institutions and
organizations, nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or employee since
graduation from college.
6/74 to 9/74 - District Attorney's Office. Macon Judicial Circuit. Macon,
Georgia. Chief Legal Assistant to District Attorney.
9/74 to 12/74 - United States Army. First Lieutenant, United States Army
Reserves. Ft. Gordon, Georgia.
1/75 to 11 /78 - District Attorney's Office, Macon Judicial Circuit (Bibb, Peach
and Crawford Counties, Georgia). Assistant District Attorney
[During certain periods during my tenure as an assistant, I
was technically an employee of the State of Georgia.]
1 976 to Present - Steward Chapel African Methodist Episcopal Church.
Organist/Minister of Music & Officer.
approx. 1975
to 1977 - Family Counseling Center. Member, Board of Directors.
1 1 /78 to 1 2/87 - United States Department of Justice (United States Attorney's
Office, Middle District of Georgia). Assistant United States
Attorney
1984 to 1991 - Investors, Ltd. Partner. (Investment partnership club)
12/87 to 4/91 - Mathis, Sands, Jordan & Adams, P.C. Partner, Law Firm
(Macon and Milledgeville, Georgia)
1991 to Present- State of Georgia. Superior Court Judge. Macon Judicial
Circuit. Macon, Georgia.
1992 to Present - Macon Symphony Board, Director
1993 to Present - Community Foundation of Central Georgia, Inc., Director
1993 to Present - Bank Corporation of Georgia/First South Bank, N.A., Director
1994 to Present - Board of Visitors, Walter F. George School of Law. Member.
Military Service: Have you had any military service? If so, give particulars,
including the dates, branch of service, rank or rate, serial number and type
of discharge received.
334
Yes. I was commissioned a Second Lieutenant in the United States Army Signal
Corps on June 6, 1 971 . While a college ROTC cadet, I performed six (6) weeks
of basic training at Ft. Bragg, North Carolina in the Summer of 1970. After law
school, I entered upon active duty (for training only) at the rank of 1" Lieutenant
at Fort Gordon, Georgia from September - December, 1974. I also performed
active duty as a reservist assigned to a regular army unit at Fort Gordon in the
Fall of 1978. After completing reserve duty, I resigned my commission in 1980.
8. Honors and Awards: List any scholarships, fellowships, honorary degrees,
and honorary society memberships that you believe would be of interest to
the Committee.
I attended Mercer University substantially on academic scholarship
(undergraduate school). Tapped into Scabbard and Blade Military Honor Society.
Member of Moot Court Board of Advisors, Walter F. George School of Law. 1 973-
74
Graduate, Leadership Georgia, 1986
Graduate, Leadership Macon, 1985
Named to Outstanding Young Men of America, 1984
9. Bar Associations: List all bar associations, legal or judicial-related
committees or conferences of which you are or have been a member and
give the titles and dates of any offices which you have held in such groups.
State Bar of Georgia
Bench & Bar Committee: 1991 -Present
Macon Bar Association
President: 1991-92
President-Elect: 1990-91
Secretary: 1989-90
Treasurer: 1 988-89
Law Day Chair/Co-Chair: approx. 1988 (and in a previous year)
Court Security Committee: 1992-93
Council of Superior Court Judges
Uniform Rules Committee: 1992 to 1993
Bench & Bar Committee: 1991 to Present
335
Sentence Review Panel: 1993
Legislative Committee: 1993 to 1994 (term)
Council Director Search Committee: 1993
American Bar Association: 1991 to Present
American Judicature Society: 1991 to Present
Georgia Commission on Family Violence:
Vice-President 1992 to Present
Georgia Supreme Court Committee
for Gender Equality: 1993 to Present
Georgia Supreme Court Task Force on
Substance Abuse: 1991 to Present
10. Other Memberships: List all organizations to which you belong that are
active in lobbying before public bodies.
The Georgia Commission on Family Violence and the Georgia Supreme
Court Committee for Gender Equality have specific charges to review and suggest
legislation or comment on the same. In that sense each has direct contact with
the State legislature and, therefore, indirectly, other public bodies. The Legislative
Committee of the Council of Superior Court Judges communicates matters of
legislative interest to the judiciary and vice-versa.
Please list all other organizations to which you belong.
Walter F. George School of Law Alumni Assoc. Board
City Club of Macon'
Alpha Phi Alpha Fraternity, Inc. (Epsilon Beta Lambda Chapter)
Community Foundation of Ga., Inc. (Board Member)
Mercer University's 30th Anniversary Planning Committee (commemorates 30 years of
African-American enrollment)
Sigma Pi Phi Fraternity (Beta Chi Boule)
Homosophian Club
Macon Symphony
1 1 . Court Admission: List all courts in which you have been admitted to practice,
with dates of admission and lapses if any such memberships lapsed. Please
explain the reason for any lapse of membership. Give the same information
for administrative bodies which require special admission to practice.
'Membership Criteria information attached - See, attachment, question 10.
336
United States Supreme Court, August 8, 1980
United States Court of Appeals for the Eleventh Circuit, October 1 981
United States Court of Appeals for the Fifth Circuit, December 29, 1978
United States District Court for the Middle District of Georgia, November 21 , 1978
Supreme Court of Georgia, January 8, 1975
Court of Appeab of Georgia, Janueiry 8, 1975
Superior Courts of Georgia, October 28, 1 974
United States District Court for the Southern District of Georgia {pro hac vice,
only) May, 1990
12. Published Writings: Ust the titles, publishers, and dates of books, articles,
reports, or other published material you have written or edited. Please
supply one copy of all published material not readily available to the
Committee. Also, please supply a copy of all speeches by you on issues
involving constitutional law or legal policy. If there were press reports about
the speech, and they are readily available to you, please supply them.
I have no published writings other than judicial opinions. With regard to
speeches referencing constitutional law or legal policy, I have only made short
talks to groups following the ABA Law Day Theme in a given year or the most
general informational comments to school children regarding the form of our
government without written documentation.
13. Health: What is the present state of your health? Ust the date of your last
physical examination.
Very good. September 22, 1993.
14. Judicial Office: State (chronologically) any judicial offices you have held,
whether such position was elected or appointed, and a description of the
jurisdiction of each such court.
I am presently a Superior Court Judge for the State of Georgia, Macon
Judicial Circuit. I was appointed by Governor Zell Miller and sworn in on April 30,
337
1991. The Superior Court is the trial court of general jurisdiction established
under the State constitution. Its jurisdiction includes felony criminal and civil
matters, as well as equity. The Superior Court also sits as a court of review in
that it hears appeals from administrative bodies such as the Workers'
Compensation Board. At the appropriate time it will be necessary to stand for
election to remain in the position following appointment.
15. Citations: If you are or have been a judge, provide:
(1) Citations for the ten most significant opinions you have written;'
I am a trial court judge. Therefore, I do not routinely write opinions in the
usual sense of the word. However, I do make rulings which occasionally
include a written decision or order. Ten of those which I believe are
significant follow:
NOTE: I have attached copies of the below listed orders and copies of
unpublished opinions, where appropriate.
(a) State of Georgia v. Kenneth D. Bright. Indictment No. SU90CR-368-
4, Superior Court of Muscogee County (Specially appointed to hear
a recusal action). Order.
(b) Emanuel R. Solomon, M.D. v. J. Gregory Jones. M.D., Civil Action
No. 81989, Superior Court of Bibb County, Georgia. Findings,
Verdict and Judgment. Affirmed: Jones v. Solomon. 207 Ga. App.
592 (1993).
(c) State of Georgia v. Altonio Brooks. Indictment No. 38737-02,
Superior Court of Bibb County, Georgia. Order.
(d) Kathryn L. Baker v. Charles R. Whalen and Vineville Tire Co.. Civil
Action No. 79740, Supenor Court of Bibb County, Georgia. Order.
(e) Atlantic Cotton Mills. Inc. v. Rivoli Crossing Baptist Church. Inc. and
First Rebecca Baptist Church. Inc.. Civil Action No. 87972, Superior
Court of Bibb County, Georgia. Order. [Judgement Reversed.
Supreme Court of Georgia, Case No. S93A1334. November 24,
^Since 1 am a trial judge, I am not often required to write opinions in handling the
routine business of the Court. In fact, a very important or significant case may not require
a written opinion, as such. Therefore, significant written opinions, as reflected here, should
not be equated as necessarily the most significant cases handled.
338
1993] See, copy of opinion attached under Question 15(2), infra.
(f) Dr. Frank W. Barr v. Dr. Margaret Barr and Margaret Barr v. Frank
W. Barr. Civil Action Nos. 83713 and 83455, respectively. Superior
Court of Bibb County, Georgia. Orders.
(g) Walker, et al v. Central of Georgia Railroad. Civil Action No. 79491 ,
Superior Court of Bibb County, Georgia. Orders.
(h) State of Georgia v. Willie James Clav. Indictment No. 40099-01.
Superior Court of Bibb County, Georgia. Order granting Motion to
Suppress.
(i) Christine L. Gleason v. Melton Joe Starks. Superior Court of Bibb
County, Georgia, Civil Action No. 87666. Order.
(j) Lance Efrem Shelley v. Debra Gray Shelley, Civil Action No. 86977.
Order.
(2) A short summary of and citations for all appellate opinions where your
decisions were reversed or where your judgment was affirmed with
significant criticism of your substantive or procedural rulings;
Only two decisions that I rendered have been reversed: (1 ) Glover v. Scott.
etal.. 435 S.E.2d 250 (1993). The Georgia Court of Appeals found as error
my affirmance of the decision of the Board of Review of Employment
Security to deny unemployment benefits to a fired employee. (2) Atlantic
Cotton Mills. Inc. v. Rivoli Crossing Baptist Church, Inc. and First Rebecca
Baptist Church, Inc., Supreme Court of Georgia, Case No. S93A1334.
Decided: November 24, 1993. The Court agreed with my analysis and fact
findings in a complex multi-congregational dispute regarding title to
property, but disagreed with my conclusion that a reversionary interest had
not been triggered by the action of the titled congregation. (Copy of
opinion attached.)
(3) constitutional issues, together with the citation to appellate court
rulings on such opinions. If any of the opinions listed were not
officially reported, please provide copies of the opinions.
None.
16. Public Office: State (chronologically) any public offices you have held, other
339
than judicial offices, including the terms of service and whether such
positions were elected or appointed. State (chronologically) any
unsuccessful candidacies for elective public office.
1 . Assistant District Attorney (appointed)
Macon Judicial Circuit 1975-78
2. Assistant United States Attorney
Middle District of Georgia (appointed) 1978-87
3. Georgia Supreme Court Task Force 1991 -Present
on Substance Abuse (appointed)
4. Georgia Commission on Family 1992-Present
Violence (appointed)
5. Georgia Supreme Court Committee 1993-Present
for Gender Equality (appointed)
17. Legal Career:
a. Describe chronologically your law practice and experience after
graduation from law school including:
1. whether you served as a clerk to a judge, and if so, the name of
the judge, the court, and the dates of the period you were a
clerk;
I did not clerk for a judge. However, I did clerk for the District
Attorney's Office for the Macon Judicial Circuit.
2. whether you practiced alone, and if so, the addresses and
dates;
I did not practice alone.
the dates, names and addresses of law firms or offices,
companies or governmental agencies with which you have been
connected, and the nature of your connection with each;
6/74 to 9/74 - Chief Legal Assistant to the District Attorney. Macon
Judicial Circuit. Bibb County Courthouse; 610 Mulberry Street;
Macon, Georgia 31 201 . Supervised law clerks and drafted appellate
340
briefs.
9/74 to 12/74 - 1" Lieutenant. Signal Corps. Active Duty for Training
Only. United States Army Signal School. Ft. Gordon, Georgia
1/75 to 1 1/78 - Assistant District Attorney. Macon Judicial Circuit.
Bibb County Courthouse; 610 Mulberry Street; Macon, Georgia
31201.
11/78 to 12/87 - /Assistant United States Attorney for the Middle
District of Georgia. United States Courthouse; Mulberry and Third
Streets; Macon, Georgia 31201.
12/87 to 4/91 - Partner. Mathis, Sands, Jordan & Adams, P.C.
Private Practice of Law. Main Office: 425 S. Wayne Street;
Milledgeville, Ga. 31061. Macon Address: P.O. Box 928; Macon,
Georgia 31202.
4/91 to Present - Judge. Superior Court. Macon Judicial Circuit.
Bibb County Courthouse; 610 Mulberry Street; Macon, Georgia
31201.
What has been the general character of your law practice,
dividing it into periods with dates if its character has changed
over the years?
Immediately after graduating from law school in June of 1 974,
I continued as chief legal assistant to the District Attorney for the
Macon Judicial Circuit, so that I might take the bar exam in July,
1974 and because I was scheduled to enter active duty with the
United States Army Signal School at Ft. Gordon, Georgia in the fall.
My major responsibilities were to supervise other summer law clerks
and interns and to serve as the chief appellate brief writer for the
office.
I ended my employment with the district attorney's office and
entered active duty (Signal Officer's Basic Course) in September,
1974. While on active duty, I received notice that I passed the
Georgia Bar Exam. My active military course of duty ended in
December, 1 974. Thereafter, I returned to Macon, Georgia.
I accepted employment as an assistant district attorney for
the Macon Judicial Circuit in January, 1975. I was the first African-
American so appointed in the history of the circuit (and possibly the
first in the State outside of Atlanta-Fulton County, Georgia). As an
assistant, I prosecuted felony and related misdemeanor cases in the
Superior Courts of Bibb, Peach and Crawford Counties. Among the
341
charges personally prosecuted were: Murder, lesser homicides,
kidnapping, rape, armed robbery, burglary, and theft cases. I also
prosecuted cases in the Juvenile Courts of the circuit, including
allegations of delinquency, deprivation and similar actions brought
against parents or affecting the hghts of parents and children in that
court.
My duties as an assistant district attorney also included
representing the State in felony preliminary hearings, inquests,
search warrant preparation, criminal investigations, in civil suits
within the responsibility of the district attorney relating to public
nuisances, and appellate brief writing. I also established and
administered the Child Support Recovery Unit for the circuit in 1 975,
pursuant to newly enacted federal child support enforcement
legislation. At the time I left the district attorney's office, to accept
appointment as an assistant United States attorney, I was the major
crimes prosecutor and the second most senior attorney in years of
service on the District Attorney's staff.
I was appointed to be Assistant United States Attorney for the
Middle District of Georgia by then-Attorney General Griffin Bell on
November 7, 1978. I was assigned to the criminal section of the
Macon Division (the district's largest of seven divisions). I became
the senior attorney in that division within a year of my appointment
and remained so throughout my tenure.
As an assistant, I was responsible for investigating and
prosecuting violations of federal criminal statutes and related
regulatory rules for numerous federal agencies within my division,
including the Federal Bureau of Investigation; the Secret Service; the
Bureau of Alcohol, Tobacco, and Firearms; Immigration and
Naturalization; Department of Education; Department of Commerce;
United States Postal Service; Internal Revenue Sen/ice; etc. As an
assistant, I was also responsible for appellate briefs and arguments
to the United States Court of Appeals level. I practiced regularly,
first in the United States Court of Appeals for the Fifth Circuit, and
later in the United States Court of Appeals for the Eleventh Circuit.
While an Assistant U. S. Attorney (from November, 1978 until
December, 1987), I prosecuted major drug and racketeering cases,
multi-million dollar fraud cases, tax evasion and fraud cases, threats
against the President, illegal automatic weapons cases, agricultural
fraud, electric power plant construction fraud, mail and wire fraud,
bank fraud, counterfeiting, airplane hijacking, false claims, interstate
travel violations, thefts from interstate commerce, bank robbery, etc.
342
In December of 1 987, I resigned my position as an assistant
United States Attorney in order to enter private practice. Together
with the following attorneys, I formed Mathis, Sands, Jordan &
Adams, P.C. with offices in Macon, Georgia and Milledgeville,
Georgia: Charles A. Mathis, Jr., D. James Jordan, and Virgil L
Adams.
Mathis, Sands, Jordan & Adams, P.C. was a general practice
law firm with emphasis toward the development of a personal injury
and related areas of practice. However, the firm continued to
provide legal representation in State end Federal criminal cases,
domestic relations, corporate, real estate, wills and estates, and
cases involving civil rights throughout my tenure with the firm.
I served as Vice President of the firm. While associated with
the firm, I handled cases in the following areas: Federal and State
criminal defense, personal injury, domestic relations, wills and
estates, employment, civil rights and Federal civil forfeiture. I also
handled a limited number of cases before administrative agencies:
EEOC (United States Air Force, United States Postal Sen/ice, State
of Georgia). Additionally, I handled some corporate and real estate
matters, including matters for the City of Macon.
I ended my relationship with Mathis, Sands, Jordan & Adams,
P.C. (now Mathis, Jordan & Adams, P.C.) on Apnl 29, 1991. On
April 30, 1991, I was sworn in as a Superior Court Judge for the
Macon Judicial Circuit upon appointment by the Honorable Zell
Miller, Governor of Georgia.
Describe your typical former clients, and mention the areas, if
any, in which you have specialized.
As an assistant district attorney, I represented the State of
Georgia, and hence, the citizens of Georgia in the prosecution of all
levels of felony charges and related misdemeanor violations. These
included murder, rape, armed robbery, kidnapping, aggravated
assault, other crimes against persons and crimes against property,
including fraud. Additionally, I represented the State in actions in
the Juvenile Court, preliminary hearings, grand jury proceedings,
and inquests. At the direction of the district attorney, I also,
organized, established and administered the Child Support
Recovery Unit which engaged in actions to establish paternity and
to establish and enforce the payment of child support by absent
parents. The clientele included victims of crimes from all strata in
343
the three-county judicial circuit which included persons from every
facet of society from the very poor and rural communities to the very
urban and wealthy communities. My public clientele included all of
these.
As an assistant United States attorney, I represented the
citizens of the United States, predominately, in 1 8 counties of the
70-county district. While I prosecuted a full cross-section of federal
criminal offenses, I specialized in complex fraud, tax, and
racketeering-related prosecutions. Additionally, I drafted and argued
all appeals of cases I prosecuted to the Circuit Court of Appeals
level.
During the private practice of law, my clientele and that of the
firm were very diverse and inclusive with regard to race, sex, and
income levels. I represented businesses and laborers, the very
young and the elderly. I would describe my specialty as litigation,
while in public and private practice.
Did you appear in court frequently, occasionally, or not at all?
If the frequency of your appearances in court varied, describe
each such variance, giving dates.
I appeared in court frequently. The frequency varied as follows:
While an assistant district attorney, I was in court virtually every day
handling hearings and trials due to an enormous caseload. Later,
as an Assistant United States Attorney, I was in court frequently,
though not as often in trial, because of the typically smaller
caseload in Federal court as compared to State court. However, the
federal cases tried were generally far more complex. My in-court
frequency was further reduced upon entry into private practice due
to the reduced caseload of a private practitioner as compared to a
public practitioner. Nonetheless, my court appearances remained
relatively regular and frequent.
2. What percentage of these appearances was in:
(a) federal court; 55%
(b) state courts of record; 44%
(c) other courts. .5%
[(d) administrative tribunals .5%]
3. What percentage of your litigation was:
(a) civil 28%
344
(b) criminal 72%
State the number of cases in courts of record you tried to
verdict or judgment (rather than settled), indicating whether you
were soie counsel, chief counsel, or associate counsel.
I conservatively estimate the toted number of cases I tried to verdict
or judgment in courts of record at 200. I was usually chief or sole
counsel, and on a few occasions, associate counsel. This estimate
neither includes the countless minor and petty offenses I have tried,
nor, matters tried before magistrate judges.
5. What percentage of these trials was:
(a) jury 75%
(b) non-jury 25%
18. Litigation: Describe the ten most significant litigated matters which you
personally handled. Give the citations, if the cases were reported, and the
docket number and date if unreported. Give a capsule summary of the
substance of each case. Identify the party or parties whom you represented;
describe in detail the nature of your participation in the litigation and the final
disposition of the case. Also state as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or judges before
whom the case was litigated; and
(c) the individual name, addresses, and telephone numbers of co-counsel
and of principal counsel for each of the other parties.
1) United States of America v. Two Hundred. Ninety-Seven Thousand.
Eight Hundred. Ninety-Five Dollars ($297.895.00) In United States
Currency, The House and Lot. Civil Action No. 89-11 3-VAL
I represented Herbert Grady Bowen, one of three individueils who
filed a claim and answer to a forfeiture complaint. He was the owner of
several hundred thousand dollars of cash deposited in a bank by his co-
claimant brother, who had acted as his financial advisor. The major source
of Bowen's cash was his share of an inheritance from his deceased
mother, and his half of a wrongful death settlement resulting from the death
of his son, who was struck by a tractor trailer rig. Bowen withdrew this
lawfully deposited money from his Florida bank in the form of cash.
345
After keeping the money in his home under the constant fear that he
would be robbed, Bowen decided to taJ<e the money to his brother's home
In Georgia. Bowen was in relatively ill health and was interested in using
the money to invest for his retirement. His brother had a background in
personal finance and agreed to help him determine what was best. The
brother concluded and recommended that the money should be placed in
an annuity. However, the money needed to be deposited, but the brother
was fearful that the word might get out in his small town that he had sacks
of cash if he took it all to the bank at once. According to the brother, he
understood his local banker to explain that the money could be deposited
and not reported ("publicizad" in his mind) by the bank so long as the
deposit was less than $10,000.00.
Thereafter, the brother made deposits of all the money through the
drive-in window of the bank. A bank employee, consistent with bank
policy, reported the deposits, suspecting that money laundering was afoot.
A joint investigation by Federal law enforcement, including the IRS, resulted
in the money and the brother's car and house (the brother's spouse also
had an interest in the house), being taken for forfeiture for violation of
money laundering statutes. (28 U.S.C. §§ 1345 and 1356, and 18 U S C
§981(a)(i)(A).
My role in the case was that of defense attorney for Herbert Grady
Bowen, the owner of the money. My client denied, that any of the money
was derived from illegal sources, that he made the deposits and contended
that he relied on his brother. He also asserted, along with his brother, that
the brother thought that he had acted consistently with his banker's
explanation. The government filed a civil complaint for forfeiture. All
claimants answered in opposition to the action for forfeiture. The
government moved for summary judgment and contended that the
deposits were per se violations. Thus, the government argued, all the
property sought for forfeiture, including the money, should be forfeited
without regard to the source of the money or the parties' intent. The trial
court denied the government's motion for summary judgement with regard
to my client's interest in the cash.
This case was settled by consent order of forfeiture. Its significance
points out some potential resulting unfairness and inequity in the operation
and effect of civil forfeiture law: if strictly enforced without regard to the
merits; and, if the enlightened and balanced participation of a jury is
denied. In all probability, this case settled because the government did not
succeed in its motion for summary judgment as to my client and faced the
real possibility that a jury would accept the defendants' explanation,
particularly where the government could not show that the money was the
fruit of illegal conduct or that the parties' intended to violate the law. An
amount was forfeited to the government and the remaining funds plus
346
accrued interest, along with all other personal property, was returned to the
daimants.
Parties: The United States of America;
Herbert Grady Bowen;
Charles Ben Bowen. Jr.;
M£uy Keneece Bowen.
Co-Counsel: None
Counsel for Charles Ben Bowen. Jr. and Mary Keneece Bowen:
Floyd M. Buford Sr.
Buford & Buford
P.O. Box 4747
Macon, Georgia 31208
(912) 742-3605
Opposing CounsehCharles E. Cox, Jr., A.U.S.A.
P.O. Box U
Macon, Georgia 31202-0076
(912)752-3511
Date of Disposition: April 30, 1991
Court: United States District Court for the Middle District of
Georgia, Valdosta Division
Judge: Hon. Wilbur D. Owens. Jr.
2) Ridley v. Grandison. 260 Ga 6. 389 S.E.2d 746 (1990).
Ridley is a domestic relations case wherein the wife sued the
husband for divorce based upon an alleged common law marriage. I was
lead counsel for, and represented, the wife at trial and as appellee on
appeal to the Georgia Supreme Court.
The parties' relationship began in the State of Virginia, vtrtiich did not
recognize common law marriages. However, the parties moved to Macon,
Georgia and purchased a home and furnishings where they (along with the
wife's minor son) lived for several years. The husband denied the
existence of a common law marriage; contended that one could not have
been formed; and, concluded that his affair with another could not be
adulterous.
347
The jury found that a common law marriage did exist, set aside as
fraudulent an earlier transfer of the marital residence by the husband to his
father, and gave the wife alimony for a period of years. The Supreme
Court of Georgia affirmed the judgment for the wife by a vote of four to
three. Although the majority did not comment extensively, the dissenting
opinions strongly criticized the common law marriage doctrine and
suggested the need for the legislature to consider a change in the law.
Thus, the opinion expresses the concerns of a significant minority of the
justices of the State's highest Court on an issue which significantly touches
on the marital rights and responsibilities of Georgians.
Date of Trial:
November 9, 1988
Co-Counsel: For Mae Grandison
Mr. Charles A. Mathis, Jr.
Mathis, Jordan & Adams, P.C.
425 S. Wayne Street
Milledgeville, GA 31061-3445
Telephone: (912) 452-9387
Court:
Bibb County Superior Court. Macon, Georgia
Honorable Hal Bell, Judge
Opposing Counsel: (1)
For Defendant Jerome Ridley
Mr. Eari Thomas Shaffer, Jr.
Shaffer & Combs
550 Liberty Savings Tower
210 Second Street
Macon, Georgia 31201-2738
Telephone: (912) 746-2472
(2) For Defendant Jerome Ridley
Mr. Doye E. Green
Sell & Melton
P.O. Box 229
Macon, Georgia 31297-2899
Telephone: (912) 746-8521
3) U. S. V Power Piping Company
87-39-MAC
Power Piping was one of numerous cases brought by the U. ^.
Justice Department through certain U. S. Attorney's offices throughout the
country, including the Middle District of Georgia. Civil and criminal
investigations of a defaulted nuclear power plant construction project in the
348
State of Washington revealed a network of fraud perpetrgrted against power
plant owners by certain pipe and pipe fitting companies. Victim owners
included the Georgia Power Compeiny, which operated plants in Georgia,
and other plants owned by companies in Weishington, Texas, Louisiana^
etc. I participated as the assistant United States attorney responsible for
prosecuting fraud discovered in connection with the power plant
construction within the Middle District of Georgia.
The investigations and prosecutions were ceirried out by interstate
task forces consisting of selected FBI agents, IRS agents, and Assistant
United States Attorneys and others. I was the sole assistant assigned to
prosecute the fraud perpetrated on Georgia Power Company at its new
plant Sherer in Forsyth, Georgia Power Piping Company, a Pittsburgh,
Pennsylvania corporation, was successfully prosecuted for fraudulent sales
and installations of approximately one million, two hundred-thirty thousand
dollars. This case, and those similar and related, disclosed the substantial
negative impact, both financially and in lost or reduced services, on vital
public monopolies and the communities they served. Upon conclusion of
successful prosecution, which I handled, Defendant corporation paid
$1 ,221 ,249.80 in restitution and weis fined a quarter of a million dollars.
Court: United States District Court for the Middle
District of Georgia
Case No.: 87-39-MAC
Judge: Honorable Wilbur D. Owens, Jr.
Opposing Counsel: Mr. Joseph H. Davis (local counsel)
Chambless, Higdon and Carson
P.O. Box 246
Macon, Georgia 31298-5399
Telephone: (912) 745-1181
Thomas A. Donovan
Kilpatrick & Lockhart
1500 Oliver Building
Pittsburgh, PA 15222-5379
(412) 355-6466
Disposition Date: December 1 4, 1 987
4) U. S. V. Lorenzo E. Lacayo. Kosta Stanojevich. Pedro Enrique Cabrera,
and Vincents Pablo Acena
CR-86-41-MAC(WDO)
I
349
This case involved a Czech national whose specialty was arbitrage
(large, often international financial arrangements). This C5ise also involved
three other individuals, including two South Amehcan nationals. They were
charged with a conspiratorial arrangement to commit bank fraud and wire
fraud by the use of worthless cashier's checks drawn on an offshore "bank"
located in the Republic of the Marshall Islands. I was the assistant United
States attorney who supervised the grand jury investigaition and prosecuted
the case after indictment.
As background, the "bank" essentially existed on paper with only a
mailbox in the Islands as an office. The group attempted to pass cashier
checks at a branch of the Citizens and Southern National Bank in Macon,
Georgia in the total amount of $1 62,523.00. Agents of the F.B.I, were able
to arrest them in the act and confiscate the bogus checks. Jurisdiction of
the two individuals who had ties outside of the United States was
meiintained through a complex grand jury procedure. This procedure was
significant because there first had to be an investigation which could
clearly establish that the "bank" was insolvent, non-existent, or not properly
licensed, before the fraud could be established. Several hundred thousand
dollars of the "bank's" worthless cashier's checks had been successfully
passed in Rorida and Virginia because legitimate banks did not discover
their worthless nature until weeks or months after the checks had been
fonwarded for payment. This was so because the scheme, as previously
and successfully executed, allowed fraudulent checks to be recovered by
the defendants or their agents and destroyed, leaving no physical
evidence. Since, we were able to capture some major participants, recover
the checks, and hold them long enough to complete the case investigation,
not only were defendants successfully prosecuted in the Middle District of
Georgia, but it became possible for other jurisdictions to prosecute them
as well.
Court: United States District Court for the Middle
District of Georgia
Judge: Honorable Wilbur D. Owens, Jr.
Date of Disposition: August 4, 1987
Opposing Counsel: For Lacayo:
William J. Surowiec, P.A.
Public Defender's Office
1320 N.W. 14th Street
Miami, Florida 33125
(305) 545-1600, Ext. 3836
(Pled Guilty to Ct. 1 on 7/22/87. Sentenced on
10/6/87.)
350
For Stanojevich:
John M. Kierman, Attomey-at-Law
2790 Calloway Road
Suite 100
Miami, Florida 33165
(Pled Guilty to Ct. 9 on 8/4/87. Sentenced
10/6/87.)
For Cabrera:
Mr. William Castro, P.A.
Suite 601
2153 Coral Way
Miami, Florida 33145
(Indictment Dismissed.)
For Acena:
Mr. Mark Eram Frederick, P.A.
P.O. Box 385
Suite 1 , Destin Professional Center
737 Highway 98 E.
Destin, Florida 32541
Telephone: (904) 837-2115
5) U.S. V. Curtis Beebee
85-20-MAC
This Defendant was prosecuted by me, as assistant United States
attorney, for threatening the President of the United States of America (after
having been previously charged for similar offenses and after commitment
for mental treatment under relevant federal law relating to criminal
responsibility of mentally incompetent defendants).
On this occasion the defendant was prosecuted pursuant to recently
enacted federal legislation intended to address, more appropriately,
defendants whose conduct was due to or mitigated by mental disesise or
defect, etc. In prosecuting this defendant, I developed for the district the
appropriate and necessary pleadings in order to handle the case
consistent with the significant law chemges. I understeind that the
procedure I developed and pleadings I prepared were shared outside the
disthct by the Secret Service to aid in similar prosecutions as the new law
was implemented and applied.
Beebee was found not guilty by reason of insanity, but was
committed to the custody of the Attorney Genereil of the United States
because he then suffered from a mental disease within the meaning of the
351
applicable federal commitment statute.
Disposition Date: 2/12/86
Judge: Honorable Wilbur D. Owens, Jr.
Opposing Counsel: P. Craig Davis
Akin & Davis
P.O. Box 14
Macon, Georgia 31202-0014
Telephone: (912) 742-8441
6) U. S. V. Edward Starling
85-16-MAC
This case involved the prosecution of one of the most pervasive and
dedicated mass tax return frauds prosecuted in the district by the IRS. As
the assistant United States attorney, I directed a lengthy and complex
grand jury investigation and the actual prosecution of all the defendants
charged.
Starling, with the assistance of several co-conspirators, operated a
"mobile tax service" through much of a large area of the district. He preyed
mainly on minority wage earners by telling them that "the 'rich' people do
it [claim deductions falsely) all the time." By showing deductions in certain
areas of the return, i.e., miscellaneous, losses, and contributions, etc..
Starling succeeded in obtaining substantial refunds which he split 50/50
with the taxpayers, minus a preparation charge. His activities not only
earned him several hundred thousand tax free dollars, but financially
destroyed many of his modest and poor former clients when the scheme
was discovered and past taxes, interest and penalties were levied against
them by the Internal Revenue Sen/ice.
Starling's scheme demonstrated how vulnerable the IRS was to
fraudulent refund schemes where the perpetrator had apparent inside
knowledge of intemal tax return review and evaluation procedures
employed by the IRS itself. In addition to conspiracy and aiding and
assisting in the preparation of false and fraudulent returns. Starling also
pleaded guilty to false impersonation of an officer of the United States.
Court: United States District Court, Middle District of Georgia
Judge: Honorable Wilbur D. Owens, Jr.
352
Date of Disposition:
Co-Counsel: None
Opposing Counsel:
December 18, 1985
For Starling:
Michael E. Bergin
117 West Broad St, Suite 105
Fairburn, Georgia 30213
Telephone: (404) 964-5500
Disposition Date: 12-18-85
For Smith:
W. Ashley Hawkins
27 N. Lee Street
P.O. Box 325
Forsyth, Georgia 31029-0325
Telephone:
Disposition Date: 8/13/85
For Linda Thompson:
Robert C. Norman, Jr.
Jones, Cork & Miller
500 Trust Company Bank Building
Macon, Georgia 31298
Telephone: (912) 745-2821
Charge Dismissed: 12/30/85
For Davis:
A. Kenneth Secret
Secret and Associates
Bona Allen Building, Suite 500
133 Luckiest., N.W.
Atlanta, Georgia 30303
Telephone: (404) 577-2000
Disposition Date: 8/5/85
For Mitchell:
Michael E, Bergin
215 Senoia Rd.
Fairburn, Georgia 30213-1535
Telephone: (912) 964-5500
Disposition Date; 12/13/85
7)
United States v. Willieim Carlton Lawson
353
84-19 MAC. 84-20 MAC & 84-21 MAC
I supervised the investigation of these cases with several federal
agencies. The cases involved a Middle Georgia farmer and cotton
warehouser who had successfully defrauded a financial subsidiary of
Citicorp of more than four million dollars through a sophisticated fraudulent
cotton sales scheme. This was the largest such loss ever suffered by the
subsidiary and the largest such fraud case to have been brought in the
Middle District of Georgia up to that time.
Additionally, Lawson was prosecuted for defrauding the United
States Department of Agriculture. The criminal investigation, which
followed a private civil action, required more than a year to complete and
prepare due to the tremendous number of false documents which had to
be traced through several cotton manufacturing companies. After having
been confronted with a mountain of documentary evidence, Lawson
entered a plea of guilty, and was sentenced to the Federal penitentiary.
I was the sole assistant assigned to prosecute Lawson on all
charges. These cases disclosed the significant potentieil, and actual,
vulnerability of both public agencies and private financial institutions to
fraud in the commercial agriculture area where heavy government
subsidies are often present. The defendant was able to take advantage of
very complex private and government financing arrangements which he
used to maintain and conceal his fraudulent conduct and which resulted
in total losses of over six million dollars.
Court: United States District Court for the Middle District of Georgia
Judge: Honorable Wilbur D. Owens, Jr.
Co-Counsel: none
Opposing Counsel: Charles T. Erion
Erion & Exum
P.O. Box 6414
Macon, Georgia 31208-6414
Telephone: (912) 742-0168
Denmark Groover (Motion for Reduction of Sentence)
Groover & Childs
P.O. Box 898
Macon, Georgia 31203-0898
Telephone: (912) 745-4712
Disposition Date: September 11,1 984
354
8) United Stertes v. Lynwood Fincher. 723 F.2d 862 M 1th Cir. 1984^. Case No.
83-8037
I prosecuted Fincher for conspiracy to manufacture and deal in
illegally converted fireaums. Specifically, he and his co-defendants were
prosecuted for converting approximately eighteen (18) semi-automatic
Mack 10 pistols to fully automatic. Their purpose was to exchange the
converted weapons for illegal drugs from Central or South American drug
suppliers. They had learned that substantial illegal drugs could be
obtained in exchange for automatic weapons.
The govemment learned of the intended activities through a known
government informant. At the request of the govemment agents
investigating the case, the informant met with Fincher and acted as his
conduit to contact other individuals known to be willing to participate in the
proposed scheme. The informant was the critical link between Fincher, the
mastermind, and the converters and suppliers of the weapons. Fincher
was convicted upon trial and appealed. Affirmed and Held: A govemment
informant acting on behalf of ttie govemment can be the necessary link
between co-conspirators who are otherwise knowingly and intentionally
involved to accomplish the illegal purpose even though all the co-
conspirators do not personally know each other.
Cite: U.S. v Fincher. 723 F.2d 862 (11th Cir. 1984) (No. 83-8037)
Court: U.S. District Court for the Middle District of Georgia
Judge: Honorable Wilbur D. Owens, Jr.
Date of Disposition:
Opposing Counsel:
11/2/82
For Fincher:
MeU'garet C. Johnson
1312Briarcliff Rd., N.E., #11
Atiantci, Georgia 30306
Telephone: (404) 659-7799
For /Mden:
W. Ten-ell Wingfield
350 Second Street
Macon, Georgia 31201
Telephone: (912) 742-0965
Cun-ent: Cox Enterprises, Inc.
355
P.O. Box 105353
Atlanta, GA 30348-5353
(404) 843-5844
For Barron:
Thomas Witcher
Rich, Bass, Kidd & Witcher
1 1 8 East Trinity Place
Decatur, Georgia 30030
(404) 371-5050
For McDonald:
Russell M. Boston
Sell & Melton
P.O. Box 163
Macon, Georgia 31202
Telephone: (912) 746-8521
For Taylor:
Tommy C. Mann
1210 Macon Federal Tower
Macon, Georgia 31201
Telephone: (912) 742-3381
For Jackson:
Steven A. Kermish
133 Carnegie Way, Suite 1000
Atlanta, Georgia 30303
(404) 525-0457
9) United States v. Livinoston. et al
79-00073-MAC
This case is probably the most significant and demanding case that
I litigated. Livingston was the subject of a federal Racketeer Influenced
Corrupt Organization (RICO) investigation which had been underway by
the United States Attorney's Office; the Federal Bureau of Investigation; the
Internal Revenue Service; the Bureau of Alcohol, Tobacco, and Firearms;
and other federal and local law enforcement agencies for several years
prior to my appointment as an Assistant United States Attorney. Because
of threats, intimidation and fear, all the local potential witnesses were aft-aid
and refused to come fonward or cooperate with prosecution. The major
defendant had a reputation for acts of violence in the protection of his
organization from investigation and prosecution.
356
However, within months of my appointment, a break came in the
case, when certain individuals incarcerated in the State of Texas indicated
an ability and willingness to cooperate. My predecessors had either
resigned or transferred and as a result, I became the senior attorney for the
Macon Division eind took chcirge of the investigation, which continued for
several more months. The difficulty with the case was the need to
interview the newly discovered witnesses and locate corroborative
witnesses and documentary evidence without alerting the key target. This
target was so bold that he actually came to the United States Attorney's
Office in Macon and challenged the United States Attorney himself and the
investigators to "prosecute me or get off my [back]." He was confident that
a case had not been and could not be developed against him.
The investigation succeeded, and the tsirget eind others were
brought to trial on charges including (but not limited to): conspiracy,
interstate travel violations, tax violations, drug violations, and extortion. A
conviction was obtained, and he was sentenced to the federal penitentiary.
The investigation involved localities in Georgia, Florida, Texas, Louisiana,
and Tennessee. Livingston was the last and toughest of a line of major
criminal organizational heads in the Middle Georgia area to be prosecuted.
As a result of the successful prosecution, my life (and the lives of several
federal agents and local law enforcement officers, including the sheriff) was
threatened. Therefore, prosecution of the case not only required a
sophisticated and highly secret investigation, and involved complex
evidentiary matters, but also required participants who were literally willing
to put their lives and personal safety on the line in order to enforce the law
and bring these defendants to justice.
Main case affirmed on appeal without opinion (habeas corpus
action). United States v. Livingston. 756 F.2d 884 (11th Cir. 1985).
Plea of Guilty to related charge (Case No. 79-00071 -MAC) reversed
at United States v. Livingston. 665 F.2d 1003 (11th Cir. 1982).
Date of Disposition: March 18, 1980 (79-73-MAC)
Judge: Honorable Wilbur D. Owens, Jr.
Court: U.S. District Court, Middle District of Georgia
Opposing Counsel: For Livingston:
357
Robert B. French
Box 596
Ft. Payne, Alabama 35967
Telephone: (205) 845-2250
AND
Floyd M. Buford
165 First Street
Macon, Georgia 31201
Telephone: (912) 742-3605
AND
Ms. Daryl Dantzler
Attomey-at-Law
Mercer University Law School
Macon, Georgia 31207
Telephone: (912) 752-2601
For McPherson:
O. Hale AInnand, Jr.
389 Mulberry Street
Macon, Georgia 31201
Telephone: (912) 746-2237
10) Whitehead v. Hasty. 235 Ga 331, 219 S.E.2d 443 (1975).
Bibb County Superior Court, Civil Action No. 43280-75.
This case was one of the first I tried as an Assistant District Attorney.
It was an action for ctvi! injunction by the District Attorney, in his official
capacity as attorney for the public, for the purpose of abating the operation
of a 'massage parior" where certain sexual acts were performed by
employees, (not including actual sexual intercourse) in the regular course
and operation of the business.
This establishment, and others similar, were being erected in the
community and other areas but with substantial protest from the general
public, businesses, and residents located near these establishments. At
that time there were no Georgia criminal statutes which specifically dealt
with the complained of activity, and in fact, a number of criminal cases in
other jurisdictions had been reversed on appeal or dismissed.
\
358
I was assigned to accomplish the cessation of the conduct which
was under complaint. Upon investigation and legal research, I determined
that the acts could possibly be enjoined under existing and long-standing
nuisance statutes. An injunctive action was filed, served and tried. The
trial court found that a public nuisance existed and ordered the same
abated. It should be noted that no attempt was made either by the
injunctive action or the court's order to prevent the operation of a legitimate
meissage business, but each was only directed at the sexual conduct which
was specifically ordered adaated. However, since the operators were
unable to carry out the admitted primary purpose of their business, it
closed. Defendants appealed. Held: Affirmed.
Court: Superior Court of Bibb County, Georgia
Judge: Honorable Hal Bell
Date of Disposition: February, 1975
Opposing Counsel: Richard M. Nichols
(Not now believed to be a practicing attorney)
19. Legal Activities: Describe the most significant legal activities you have
pursued, including significant litigation which did not progress to trial or legal
matters that did not invoh/e litigation. Describe the nature of your
participation in this question, please omit any information protected by the
attorney-client privilege (unless the privilege has been waived).
My legal career prior to becoming a judge has empheeized the
litigation side of practice. However, my practice experience heis been
much broader. For example, as a clerk for the local district attorney's
office, I was involved in extensive research and writing on behalf of the
district attorney and his attorney staff. This included drafting appellate
briefs. My brief writing included the first petition for writ of certiorari from
the Court of Appeals of Georgia to the Georgia Supreme Court (Wiley v.
State. 131 GaApp. 511, 206 S.E.2d 140 (1974) (No. 49154). An adverse
decision of the appecils court was reversed involving a revocation of
probation and sentence under the State's First Offender Statute (cite:
O.C.G.A. §42-8-60 et seq.)
In addition to my work as a felony prosecutor for the district
attorney's office, I worked regularly in the Juvenile Court and established
and administered a Child Support Recovery Unit in 1975, pursuant to
359
newly passed federal law intended to involve district attorneys' offices in
tfie establishment of paternity and the enforcement of child support
obligations. The major part of this activity was to interview mothers so that
putative fathers could be identified and contacted. Contractual
arrangements for support and affidavits of paternity were usually obtained
without litigation. Litigation was instituted, when necessary.
As an assistant U.S. Attorney, I was involved in numerous sensitive
investigations directed at public corruption and racketeering organizations
and illegal drug organizations. I also handled investigations and
prosecutions of fraud against the government, including in the guaranteed
loan area for the Department of Education and cases within the
responsibility of the Department of Commerce. In carrying out these
investigations and prosecutions, I also worked with the following law
enforcement agencies: Federal Bureau of Investigation, Drug Enforcement
Agency, U.S. Postal Inspector, U.S. Department of Immigrations, Internal
Revenue Service, Secret Sen/ice, Department of Agriculture, etc., and local
law enforcement agencies.
In private practice I was a general practitioner, but with an emphasis
on litigation. I represented criminal defendants in significant felony cases
in state and federal courts by appointment of the court and on retainer.
These cases included property and crimes against persons, bank robbery
and drug offenses.
I was appointed to represent a co-defendant in a federal drug
prosecution which was reputed to be the largest and most significant to the
district. Some defendants received sentences as great as life without
parole. My client was acquitted by directed verdict on motion following the
close of the government's case in chief. I was sole counsel for that
defendant, who was, incidentally, the only defendant acquitted.
While in private practice, I also represented a significant local
developer in a zoning matter involving a conflict between local county and
city ordinances with superseding federal regulations. The matter was
resolved in my client's favor without litigation.
Additionally, since becoming a Superior Court judge, I have also
been involved in professionalism activities inspired and promoted by the
Chief Justice of the Georgia Supreme Court, a member of the Commission
on Family Violence, the Committee on Gender Equality, and the Bench and
Bar Committee. Over the last two years, I have been a part of a drug
abuse task force in reviewing the effects of drug abuse and addiction on
the resources of the Court system.
360
II. FINANCIAL DATA AND CONFUCT OF INTEREST (PUBUC)
List sources, amounts and dates of all anticipated receipts from deferred
income arrangements, stock, options, uncompleted contracts and other future
benefits which you expect to derive from previous business relationships,
professional services, firm memberships, former employers, clients, or
customers. Please describe the arrangements you have made to be
compensated in the future for any financial or business interest
If confirmed, I will resign my present position (superior court judge),
and as a result, would receive the following in addition to any unpaid
regular salary due me: $15,172.41, as of February, 1994. This amount
represents my retirement account in the Superior Court Judges retirement
fund.
With regard to my former firm, Mathis, Sands, Jordan & Adams, now
Mathis, Jordan & Adams, P.C, I was paid a lump sum representing my
interest in the firm, except for cases originated by me or left as a part of
my pending active files, but retained by the firm. By agreement of April 23,
1991 , I am to receive 10% of the fees from those cases to the extent the
same exceed the lump sum already received. Those cases have been
identified and records are maintained for payment purposes as each case
is closed. Additionally, I own a one-quarter undivided interest in the
building and the lot on which one of the law offices is located. It is
expected that the same will be sold to the remaining partners in the firm
as soon as the details can be worked out.
My relationship with my former partners is known, and neither
will practice before me until all ties are severed and after an
appropriate time has passed, unless the same is waived by all
parties after full disclosure, and there exists no appearance of
impropriety.
As a member of the Board of Directors of Bank Corporation
of Georgia/First South Bank, N.A., I own 100 shares of stock
purchased at $10 per share. I will resign the Board upon
nomination and confirmation and would, of course, recuse myself
fi'om hearing any matters involving the corporation, affiliates,
officers, directors or any matter relating thereto which could give rise
to actual or an appearance of conflict.
Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern. Identify the
361
categories of litigation and financial arrangements that are likely to present
potential conflicts-of-interest during your initial service in the position to
which you have been nominated.
Since my financiaJ, present and former, business interests are very
limited, I do not expect frequent conflicts, if any. As stated above, I will
recuse myself from any cases involving a conflict, or the appearance of
same. Since my assignment, if confirmed, will be in the Middle District of
Georgia, Albany-Americus Division, it is unlikely that any actual conflict will
develop with regard to my former law partners because my former firm's
federal practice is limited in scope, and largely to the Macon Division of the
district which is handled by two other active judges. Likewise, the above
corporation has only one branch in the entire fourteen-county Albany-
Americus Division, while its major corporate office is located in the Macon
Division. However, during my initial service, I will particularly check each
case for any evidence of conflict and take action immediately to avoid the
same when discovered. I will follow the guidelines of the Code of Judicial
Conduct.
3. Do you have any plans, commitments, or agreements to pursue outside
employment, with or without compensation, during your service with the
court? If so, explain.
I have decided in the best interest of the position to which I have
been nominated, and in fairness to my present and former associations,
that I should terminate those relationships as soon as the same can be
properly and reasonably accomplished. However, there are two possible
exceptions. I have been named to the Board of Visitors of the Walter F.
George School of Law (Mercer University). I would be honored to continue
that service, unless I am prevented by some rule or conflict which becomes
known to me. Of course, I would resign, as so directed, if any apparent
conflict arose and, if confirmed. Additionally, I have been invited to be a
charter member of the Board of Directors of the University of Georgia
Fanning Leadership Center. If confirmed, I would not accept that position
unless approved by the appropriate authority.
4. List sources and amounts of all income received during the calendar year
preceding your nomination and for the current calendar year, including all
salaries, fees, dividends, interest, gifts, rents, royalties, patents, honoraria,
and other items exceeding $500 or more (If you prefer to do so, copies of the
financial disclosure report, required by the Ethics in Government Act of 1978,
may be substituted here).
See, Financial Disclosure Form attached, dated February 14, 1994.
5. Please complete the attached financial net worth statement in detail (Add
362
schedules as called for).
COMPLETED STATEMENT AND SCHEDULES ATTACHED.
6. Have you ever held a position or played a rule in a political campaign? If so,
please identify the particulars of the campaign, including the candidate, dates
of the campaign, your title and responsibilities.
No.
363
III. GENERAL (PUBLIC)
An ettiical consictoration under Canon 2 of the American Bar Association's
Code of Professional Responsibility calls for "every lawyer, regardless of
professional prominence or professional workload, to find some time to
participate in serving ttie disadvantaged." DescrilM wtiat you have done to
fulfill these responsibilities, listing specific instances and the amount of time
devoted to each.
I have endeavored to comply with Canon 2 of the American Bar
Association's Code of Professional Responsibility in several different ways:
Consistent with the Judicial Canons, I have not solicited funds, even
for charitable purposes, since becoming a judge. However, I have
remained involved to the extent that I could, chiefly by speaking frequently
to elementary, secondary and college students regewding various issues
involving and affecting youth, as well as other organizations and groups.
I have talked regularly with young people of all ages (both in public
and private institutions) emphasizing the importance of avoiding criminal
activities and, hence, its consequences. I have also emphasized the
importance of education, the establishment of appropriette goeds,
dedication to excellence, respect for self and others and personal
responsibility.
I have participated in the local bar association's annual Law Day
activities as a former Chair and while an officer of the local bar. This
participation included establishing a federal court and courthouse tour for
school students, and I have given brief talks regarding the year's ABA Law
Day theme to similar and civic groups.
While an attomey, I also handled cases for the elderiy and the
indigent at lower rates, or under arrangements that allowed for flexible fee
payments.
I did not always file vouchers for representation of indigent
defendants represented at trial and on appeal.
I have served on the following Boards:
Family Counseling Center - The Center provided counseling to
indigent and disadvantaged families. The Board was very active in
seeking funds, establishing new programs and the promotion of
healthy relationships through a series of plays dealing with race
364
relations and institutional racism, death and dying, and alcohol and
drug abuse, etc., and their effect on the family. For these plays the
group received the Volunteer of the Year Award. I participated in
dozens of performances and follow-up discussions which required
a minimum of one-heilf to one and one-half hours to do.
Boys & Girls Clubs of Macon - Included fund-raising and special
programs to improve positive social and educationsil experiences for
children within their communities, especially after school eind during
the summer and holidays. I participated in several annual television
auctions which required several hours per auction and additional
hours and days prior to and after completion of tiie auctions.
Kiwanis Club of Macon - Served as Chair for two summers to
provide food for several hundred children during special summer
camp for children with psychological problems or mental illness, etc.
Three separate groups in one-week blocks were served each
summer. My job was to personally coordinate the order and
delivery of food from suppliers on a timely and scheduled basis to
the campsite.
Volunteer Macon - Organization actively sought volunteers from the
community to augment agencies, etc., or organizations which
served the elderly, youth or disadvantaged or charities. I served as
a member of the board of directors.
Macon Humane Society - Worked to provide and promote the
humane treatinent of animals. I served on the board of directors.
Macon Symphony - In addition to normal support for the orchestra
and music in the local community, the Board has endeavored to
make the music program available to youth, public and private
schools and the disadvantaged. I serve on the board of directors.
Community Foundation of Central Ga., Inc. - Newly formed
foundation for the Middle Georgia area to attract funds to improve
philanthropic contributions to the quality of life in the community.
Note: I do not participate in the solicitation of funds.
Macon Jaycees - Regulsirly put on programs for disadvantaged
children such as magic shows, and provided food and toys to
identified needy families. As a member, I was actively involved in
the preparation phase of the programming, as well as the actual
delivery of food, toys, etc., to families.
365
The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any
organization that invidiously discriminates on the basis of race, sex, or
religion. Do you currently belong, or have you belonged, to any organization
which discriminates - through either formal membership requirements or the
practical implementation of membership policies? If so, list, with dates of
membership. What you have done to try to change these policies?
In the past, I belonged to the Macon Jaycees (Junior Chamber of
Commerce), I now understand that at some time in the past the
organization may have enforced discriminatory membership practices.
However, I have never supported such practices and have always
supported open membership without regard to race, sex, religion, or
national origin. In fact, I was one of the earliest African-American members
of my local chapter. I also know of other minority members and believe
the organization is now, and for many years has been, open to and has
women members. I was a member in the 1970s.
I am presently a member of the Homosophian Civic Club, Inc.,
which was originally a men's club. I favor the admission of women. The
Club is open to application from women and the constitution either has
been or is being revised to reflect same. I have personally offered to
sponsor a woman candidate, if she follows through on her stated intention
to apply. [See, the attached copy of a letter to me, written at my request,
from the organization's current president]
Is there a selection commission in your jurisdiction to recommend candidates
for nomination to the federal courts? If so, did it recommend your
nomination? Please describe your experience in the entire judicial selection
process, from beginning to end (including the circumstances which led to
your nomination and interview in which you participated.).
Yes. My name was among others reported to Senator Sam Nunn
as qualified for the position for which I seel< confirmation.
Senator Nunn, the Democratic Senior Senator from Georgia,
appointed a committee to review the qualifications of persons evidencing
an interest in being appointed to fill FederaU judicial or U.S. attorney
vacancies in Georgia. The committee was made up of a cross-section of
individuals, including those from the legal and business professions.
The committee prepared and forwarded a 65-question questionnaire
to each person who had been recommended or who had indicated an
interest in an appointment. The completed questionnaire was due not later
than Friday, April 30, 1993. A copy of the completed application was
366
required to be sent to each of the nine (9) members of the committee, eind
to Senator Nunn. Thereafter, each applicant was interviewed at a time
scheduled by the committee. I submitted a timely application.
Following the completion of interviews for each vacancy for each
federal district, the committee provided to Senator Nunn the names of a
number of persons whom they believed to be qualified for each position.
Senator Nunn later personally interviewed each person referred to him by
the committee as qualified. Thereafter, he notified his chosen
recommendee, announced and forwarded his recommendations to
President Clinton. In this way, I was recommended for the vacancy in the
Middle District of Georgia, Albany-Americus Division.
In September of 1993, 1 received from the Office of the White House
Counsel copies of forms required to be completed, as a part of the
nomination process following recommendation to the President. Included
were forms for submission to the Department of Justice, the American Bar
Association, the United States Senate, the Federal Bureau of Investigation,
and certain financial disclosures and waivers. I completed each requested
document and fonwarded them to the Office of the Counsel.
Thereafter, I was contacted by an official of the Department of
Justice who interviewed me initially by telephone. It is my understanding
that assigned Department of Justice officials or representatives reviewed
and verified references and followed up on my documentation and
interviewed persons familiar with me personally and professionally. I later
travelled to the Department of Justice where I was personally interviewed
at length by a panel of Justice officials.
Prior to my interview at the Department of Justice, I was personally
interviewed by an agent of the Federal Bureau of Investigation. This
interview was a part of my official background check carried out by the
Bureau. The agency had previously been provided documentation which
I had completed for use in the investigation.
Prior to my Department of Justice interview, I was directed, by a
Department of Justice official, to f onward my American Bar Association
documents to the appointed ABA official. I immediately complied and was
later personally interviewed in Atlanta, Georgia by an American Bar
Association representative. A report was prepared by the representative
which was later fonwarded to the Department of Justice by the ABA
Standing Committee on Federal Judiciary.
On February 9, 1994, 1 returned a personal call to the White House
Counsel. During the call, I was advised that the President had earlier that
day formally forwarded my nomination to the United States Senate as his
f
367
nominee to the United States District Court for the Middle District of
Georgia.
On the same day, I was directed, by an officied of the Department of
Justice, to complete the required Fineincial Disclosure Report and submit
it to the Judicial Ethics Committee, Administrative Office of the Courts, not
later than Monday, February 14, 1994. I complied. I was also directed to
review and update, where necessary, the United States Senate
Questionnaire for Judicial Nominees (the instant form) for submission as
soon as possible in order that the Senate Judiciary Committee may
properiy consider my nomination.
At all times, I was wamily end respectfully treated in an atmosphere
and environment which I felt was directed at selecting qualified candidates
for each position.
Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any specific case, legal issue or question in a manner
that could reasonably be interpreted as asking how you would rule on such
case, issue, or question? If so, please explain fully.
No.
Please discuss your views on the following criticism involving "Judicial
activism.'
The role of the Federal judiciary within the Federal government, and within
society generally has become the subject of increasing controversy in recent
years. It has become the target of l>oth popular and academic criticism that
alleges that the judicial branch has usurped many of the prerogatives of
other branches and levels of government Some of the characteristics of this
"judicial activism* have been said to include:
a. A tendency by the judiciary toward problem-solution rather than
grievance-resolution;
b. A tendency by the judiciary to employ the individual plaintiff as a
vehicle for the imposition of far-reaching orders extending to broad
classes of individuals;
c. A tendency by the judiciary to impose broad, affirmative duties upon
governments and society;
d. A tendency by the judiciary toward loosening jurisdictional
368
requirements such as standing and ripeness; and
e. A tendency by the judiciary to impose itself upon other institutions in
the manner of an administrator with continuing oversight
responsibilities.
As a sitting judge, it has been my practice to refrain from public
comment or criticism of the decisions or actions of judges. This I have
done for two basic reasons: (1) As a judge, it is inappropriate for me to
openly criticize the decisions and actions of fellow judges in that to do so
would tend to give the appearance of bias or prejudice on matters in
controversy while the same are within the breast of the courts and under
review. (2) The overall effect of such comments could very well serve to
reduce respect for the court and its authority.
However, I sincerely respect and acknowledge the necessary £uid
indispensable role of the United States Senate in reviewing and evaluating
the qualifications of Federal judicial nominees. Therefore, I believe it
appropriate that I comment, but that such comments be limited to only a
discussion of my view and philosophy of judicial decision-making.
Well-founded and reasoned judicial decisions and rulings can best
develop where due regard is given to legal precedence and procedure.
In turn, this regard allows for and permits the development of clearly
defined legal issues considered in the appropriate jurisdiction as dictated
by the Constitution, by statute or binding precedent.
I also believe that our system of government works best, and as
intended, when the constitutionally established separation of powers is
recognized, acknowledged, and allowed to function. The political and
legislative processes must be allowed to freely proceed and benefit from
public debate and discourse. It is equally important, however, that every
litigant have access to and the protection of our courts, consistent with the
Constitution and with the laws enacted by the legislative body pursuant to
and consistent with its powers under the Constitution.
A Federal judge must, to the best of his or her ability, decide only
those issues properly before the Court, consistent with its jurisdiction as
conferred by Article III of the United States Constitution and the statutes
passed by Congress that also confer additional jurisdiction. This critiC2il
process must be carried out in a fair mcinner, based solely on the
applicable taw and relevant facts, without favor, affection, bias or prejudice.
This, without in any way suggesting what would be my decision on any
issue, I promise, to do, if confirmed.
369
<nionr:iMri.nNCHLixnNB00KagFireBr(NUQ
OOBTDK
uTJ FINANCIAL DISCLOSURE REPORT
aiymt ■■|ii1i>«1 br tha Ctblos
amtB^ let of l<n, nb. L. lo.
101-lM, ■cmabu 10, 1M9
(S O.S.C.A. 1pp. 6, fflOl-lU)
first, ■'^■lls laltlAl)
Sands. Willie L.
(Preferred: W. Louis Sands)
2. Oonrt or Oi^«nlTir1n«
Untced States District Court
Middle District of Georgia
1. Data of lapirt
2/14/94
4. Tltla (Irtlela III ]ad«« ladlcata actln or
fall- or pirt-tliS) ^
United States District Court Judge
5. aiinrT Typa (ehacfc apptoprlata CTpa)
X_ ■o.ia.tKm. ll.t.2/9/94
talUal laaaal rlaal
C. lliorTliij rarlod
1/1/93 - 1/31/94
T. Ckaabara or offtca litclnm
Bibb Superior Court
Room 310 Bibb County Courthouse
Macon, Georgia 31201
■. Ob tka baala of tha lafm
la, la af oplaloa, la oa
■atlaa mnTalnail la thla »a|iort. It
pllaaoa wltb appllcahla lawa aad
aaviaiflag Offlcar Slgaatara ,
^slMPORXANT JfOro&^n^^'^Mniiafara joo^^ must be fiiBowed. Complete
,'riifrirfm the NONE toe fcc esdi secfloo' where wm hare no tmortaUe lalbraiatioa. Sign onUm
'X'\\ -^■f^^'^f^pMr'.^
I. POSITIONS. (RqKming individual only; see pp. 7-8 of Instrnctions.)
POSITION NAME OF ORGANEATION/ENTrTY
n
NONE (So rapuctabla poaltlooa)
Member
Member
Board of Visitors. Walter F. George School of Law fe
Dean Search Committee & Executive Committee of Alumn:
Mercer Dnlverslty Planning Committee for 30th Year of
Black Enrollment
(cont'd)
II. AGREEMENTS. (Reporting individual only; see p. 8-9 of Instructions.)
DATE PARTIES AND TERMS
'I NONE (lo raportaals agi
4/23/91
Stock purchase agreement which provides that seller be paid the greater
nf a lump sum nr Ifll nf all f»»g affnalTy i-pppivpH frnm rho final H<spn-
sition of Identified cases in which seller had an interest at time of re-
. Signarinn frnm firm ParM-gg; U. T.nnig SanHs. Spllgr. Marhi«:. .TnrHan. (.
Adams. P. C. (formerly Mathis. Sands. Jordan & Adams. P. C). Charles A.
Mathis. Jr.. T). .lames Jordan and Virgil Adams. Purchasers.
III. NON-INVESTMENT INCOME. (Reporting individcal and spouse; see pp. 9-12 of Instructions.)
n
DATE
(Honoraria only)
SOURCE AND TYPE
NONE (lo raportabla aoa-lavaataai
1/93 - 12/93
Superior Courts of Georgia
I
1/93 -
12/93
1
1/93 -
12/93
4
1/93 -
12/93
Bibb County Commissioners (county supplement)
GROSS INCOME
(youis, not spouse's)
$ 72,494.03
1 /PT - 17/93
Crawford County Commissioners (county supplement)
Peach County Commissioners (county supplement)
Steward Chaoel A.M.E. Church (organist)
S 17,250.06
S 1,153.80
S 3,532.86
S 600.00
370
^i*,,.-^..-
tnnASCsM-
DISCLOSURE REPORT (cont'd)
I o( I
Willie L. Sands
Dsto oC ■■port
2/1A/94
iw REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment
(Lodada Ihoce to cpoose and dependent chlldrcK nse the paicntbedeals '(S)' and '(DC)' to indlcMe reportalile
rdmborscmenis and gifts recdTcd tj tpouse and dependent children, respecthciy. See pp.13-15 of Inmncllaas.)
SOURCE
NONE (Bo rack CTgnrtjhU rail
"EXEMPT"
a
DESCRIPTION
(tftal
"EXDIPT"
V. OTHER GIFTS. (Indndes thoM to cpoose and drnendmt cUUrcn; nae the paitatheticals '(S)* and *(DC)* to
Indkalr other gifts iecei»ed by spoosc and oepeadent
D
SOURCE
NONE (ao rack nvorubla (Ittal
"EXEMPT"
fWMren, tespectHc^y* See pp.i5-i6 of Instmctloaaa)
DESCRIPTION VALUE
"EXEMPT"
"EXDIPT"
VI. UABIUTIES. (Indodcs those of spouse and dependent children; faidicate where applicable, person responsibie
for UabililT br using the parenthetical '(S)' for sepanlc Uabilitf of spouse, '(J)' for Joint liabilily of reporting
individual and spmue, anT^(DC)* for liabiUtjr of a dependent diUd. ^ce pp.i^l8 oTInstenctioas.)
CREDFTOR
NONE (ao raporubla llabtlltlral
Lincoln National Insurance Co.
n
DESCRIPTION
Personal loan fron cash value of Ins.
VALUE CODE*
• .mun I
a - «U,0«e or lara
« - S3M,001 » s»oa,ooo
o • ss«o,ooi to n.ooo.ooo
%l,9C0,00Q
371
pn^ANClAl.
DISCUSSURE REPORT (cont'd)
Maa oC P«c«aa 9myiirttmg
Willie L. Sands
Outm ot lltinrt
2/14/94
t/ii irjVESTMENTS and TRUSTS - income, value, transactions, (indnda ttwie or
VII- and drprndrnt cfaUdrai; see pp. IS-Z7 of lutmctiaat.)
(CcfSfagcri
IM lAdPiaSI «a4 ■uawK^^Ci* tor
^ «Bi^c UM pnoc u*cIosur*.
"sis?
VPf}
^-.
J valM
at *ad ot
Cod*
''Craxtvao^oaa during rvportlag period
»^ui.
-ir;
^roM dlacloanrm
uoatb
<3)
coda'
S5i
n
NONE (■.
— af , OC
^ 100 shares of common stock
ig
Bank Corporation o
rss.
E ] E
M P
Superior Court Judges Re-^
tlrement account (unvested)
E C E
M P
T ••
' iundlvided Interest in bdlg
i lot - Baldwin County, Ga
C E
M P
■a/Cala <
Col. »1 t P4I
^•$1,000 or Immm
t-sis.oei to iso.aoo
■•$1,001 to »,soe
iSO.OCl to tlOO.flOO
<:-*z,sai to s.ooo
- ItOO.OOl tn SI
ligiT nig*«^tr»!^?88i°°' iS3ia.arti'iggt8SS
0-*S,001 to $15,000
taoo Col, ci 4 Oil
3 valao Motboo Coda*:
J>il9,000 or
ll-$2S0.001 to S500.OOO
Q'Appralaal
t.{U:Mt to IM,
OSSOO.OOI to tl. OOP. OOP
(•coat (raal aatato our)
OaI
-Hook Valua
ifcEatlaatad
TaCaah/MarkM
372
, DISCLOSURE REPORT (cont'd)
Willie L. Saads
Dtta sf Baiact
2/U/9it
y,,/ ADDITIONAL INFORMATION or EXPLANATIONS, dndiote pot or Report.)
VI 1. - This is a loan from the cash value of one of my personal Insurance policies. A net
cash value remains after deducting the full amount of the loan.
VII 2. - This is the expected distribution from my retirement account upon resignation of
my present position, if confirmed.
3. - I am the owner of i undivided interest In the lot and building upon which one of
the
offices of m>
former
law
firm is
located. I expect to dls
pose
of
my
Interest
in
said
property
as
soon
as
Che sane
is reasonably practical
for
all
parties.
I
have no
Interest
in
the
firm
itself
except as set out in Part
II.
above.
IX. CERTIFICATION.
In compliance with the provisions of 28 U^.C S 455 and of Advisory Opinion No. 57 of the Advisory Committee on
Judicial Activiiies, and to the best of my knowledge at the time after reasonable inqniiy, I did not perfbnn any adjadicatoiy
function in any litigation during tbe period covered by this rqx>rt in which I, my spouse, or my minor or dependent children
bad a financial interest, as defined in Canon 3C(3)(c), in the outcome of such Uligation.
I oenily that all information given above (including information pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was
withheld because it met applicable statutory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the acceptance of giAs which have beeii>
reported are in compliance with the provjsie^ of S U.S.C.A. app. 7, § 501 et seq., 5 U.S.C S 7353 and Judicial Conference
regulations.
Signature
Due
2/14/94
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCnONS (5 U.S.CA. APP. 6, { 104, AND 18 VS.C. i 1001.)
. i^>.
'.<:.■-. . t,->^^f - -^'--i..' _^-,j,, .
UCnONS:
FDLINOINSTR'
MaB agned origituil and 3 additional copies to:
JodicSflJ Eiliics Coimniitee
Admlnlitnillvo Offloe of the
United States Courts
Washingtrtn, DC 20544
373
• > vcflLOSOSE REPORT (cont'd) Name: Willie L. Sands
Date: 2/14/94
I.
POSITIONS (cont'd)
Member
Member
Member
Member
& Vice Fres.
Member
Member
Member
III.
NON-INVESTMENT INC
6.
1/93 - 12/93
7.
1/93 - 12/93
8.
1/93 - 12/93
9.
1/1/93 - 1/31/94
0.
1/1/93 - 1/31/94
1.
1/1/93 - 1/31/94
2.
1/1/93 - 1/31/94
3.
1/1/93 - 1/31/94
4.
1/1/93 - 1/31/94
Board of Directors, City Club of Hacon
Board of Directors, Comsunlty Foundation of Central Georgia
Board of Directors, First South Bank of Middle Ga./Bank Corp.
of Ga.
Georgia Commission on Family Violence
Georgia Supreme Court Task Force on Substance Abuse
Board of Directors of Macon Symphony
Board of Directors of Midsummer Macon (term ended - 1993)
First South Bank of Middle Ga. (Director)
$ 4,250.00
WMAZ-TV (Weather Caster /Community Services
Director) (S) $26,795.10
Robert Cummlngs d/b /a Reflections Promotion (S) $ 1,055.00
Superior Courts of Georgia
Crawford County Commissioners
Peach County Commissioners
Bibb County Commissioners
First South Bank of Middle Ga.
WMAZ-TV (S)
$ 6,112.00
$ 115.38
$ 333.33
$ 1,750.00
$ 750.00
$ 2.640.00
374
FINANCIAL STATEMENT
NET WORTH i
Provide a complete, current financial net worth statenient which itemizes in detail all assets (including b
• cecums. m\ estate, securities, trusts, investments, and other financial holdings) all liabilities (including de
mortgages, loans, and other financial obligations) of yourself, your spouse, and other immediate member
your household.
ASSETS
UABI'JTIES
Cjih on hsnd and In banKi
1 A202
80
Notts piytbl* to banks — Mcurtd
Not** parabi* to bank»— un»*cui»d
Notn payibia to rtUt>v«s
Notts payabla to othara
Accounts and bills due
Unpaid Incoma tax
Othar unpaid tas and Intamt
Raal ntata ntortsagvi payabia — add
»ch^dula
Chattel mortsates and olhar Ham
pajrcbla
Othar debts — Itemize:
Educational loan (spouse)
20021
3b
U.S. Co»»fnmtnt ••cundri — add
1 200
00
1106
1$
00~
UiJ»d veeuriBe* — »dd tch»doU
3000
—
Unllrt»d Mcuf1li« — idd »d»»dul«
1000
UU
14382
97
""•
Account! «nd noln recatvabla:
-
~*
Out (roin ralttivn and tri*ndi
_
Out from o<h€re
91811
90
Doubtful
111777
50
8437
82
ftui rtUtc mortC>ff*=* r*c«lv«bU
94^53
75r
85
1
>U/toi 4r>d olfitr p4r»onal property
5682
79'
8909
1
1
unpaid salary due from
7000
nn
retirement account
15172
41
ToUl lUbilities
Net Monh
Toal liablllUei and net worth
144443
02
98272
94 i
Toui itun
242715
56
242715
96
CX)NnNCCt<T UABILITItS
20
GENERAL INFORMATION
Ai •ndorMr, comaker or cutranlor
769
Are any assets pledged? (Add sched-
ule.) Yes.
Are you defer>dam In arry suits or
t«S»i actlonsrYes , Child supp
Have you vmr taken baniuvpicyr No.
8437
87!
On I*ji4i or cont/icu
jrt modi
Lecel CUims
icatic
Provision lor r»d«ril 'nccm* T«i
Ottiar ip^lil dtbt
■
-
imcHCff: nm n. nwm nnMDcanjcroFiiBBrirwQ
ousnois
375
FINANCIAL STATEMENT
NET WORTH
SCHEDULES:
1,) U. S. Govenunent securities - U. S. Savings Bonds
2.) Unlisted securities - 100 shares common stock. Bank Corporation of Ga.
3.) Real Estate Owned:
a) house and lot, Macon, Bibb County, Georgia
b) J undivided interest in building and lot Milledgeville,
Baldwin County, Georgia
4,) Real Estate Mortgages payable:
a) home mortgage: $45,127.62 *
equity line 32,434.28 **
b) i of mortgage on building & lot: $14,250.00***
*Flrst Union Mortgage Corporation
**Flrst Union National Bank of Georgia
***Century Bank i Trust
5.) Pledged assets:
a) 1993 Volvo (i/c/w its purchase, i.e. bank note)
b) grand piano *
c) some furnishings*
♦Pledged 1/c/w Associates, First Family Financial Services,
& Yamaha Music Finance
NOMINATION OF MICHAEL BROMWICH, TO BE
INSPECTOR GENERAL, U.S. DEPARTMENT
OF JUSTICE
FRIDAY, APRIL 22, 1994
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 11:04 a.m., in room
SD-226, Dirksen Senate Office Building, Hon. Dianne Feinstein
presiding.
OPENING STATEMENT OF SENATOR FEINSTEIN
Senator Feinstein. The Judiciary Committee will come to order.
This morning, the committee will conduct a hearing on the nomina-
tion of Michael Bromwich to be Inspector General of the Depart-
ment of Justice.
Let me say for the record that the nominee has completed a very
detailed questionnaire on his qualifications, his experience, his fi-
nances, and his philosophy. The portions of the questionnaire avail-
able to the public will be printed in the record of this hearing. We
will also keep the record open for a limited time just in case mem-
bers of the committee would like to submit written questions.
We have received dozens of letters in support of this nomination.
We will place these letters in the record, also.
[See letters in support of Michael R. Bromwich, p. 444.]
Of course, we will place in the record any introductory state-
ments. At this time, I would like to enter into the record a state-
ment of Senator Orrin Hatch, the ranking minority member of this
committee, and a statement by Senator Daniel Moynihan on the
nomination of Michael Bromwich. These two statements will go
into the record.
[The prepared statements of Senator Hatch and Senator Moy-
nihan follow:]
Prepared Statement of Senator Orrin G. Hatch
The Judiciary Committee today considers the nomination of Michael Bromwich to
be Inspector General of the Department of Justice.
The Inspector General's duties, as set forth in Attorney General Order 1638-92,
dated December 11, 1992, relate essentially to allegations concerning waste, fraud,
and abuse at the Department of Justice, or by the Department's contractors grant-
ees or other recipients of Departmental benefits.
Another office, the Office of Professional Responsibility (OPR), handles allegations
of prosecutorial misconduct or unethical conduct by Department lawyers and allega-
tions of misconduct by investigative and law enforcement personnel at the Depart-
ment.
(377)
378
In my view, keeping OPR separate from, and independent of, the Inspector Gen-
eral's office is very important. The Attorney General should be able to turn to an
independent office, headed by a nonpolitical, career lawyer, reporting directly to the
Attorney General. Accordingly, I was troubled by reports that Attorney General
Reno was considering the merger of the two offices.
Following correspondence from myself and several of my Republican colleagues on
the committee, I was pleased to receive an April 5, 1994, letter from Attorney Gen-
eral Reno in which she advised me that she had "determined not to merge the [two
offices] or in any other way to place OPR under the supervision of the IG. '
Attorney General Reno added, "I am convinced that the continued separation of
the functions and responsibilities of these two components will help to ensure that
we maintain the highest standards of professionalism within the Department."
I construe these remarks as meaning that OPR will retain its current responsibil-
ities as well as its status as a separate office.
I look forward to the nominee's testimony.
Prepared Statement of Senator Daniel Patrick Moynihan
Mr. Chairman, it is my great pleasure to introduce Michael Bromwich to this hon-
orable Committee. I believe he will be an outstanding Inspector General at the De-
partment of Justice.
Mr. Bromwich's credentials are exemplary. He spent almost ten years at Harvard
University, graduating in Social Studies from Harvard College summa cum laude,
receiving a Master of Public Policy Degree from the John F. Kennedy School of Gov-
ernment, and receiving his law degree from the Harvard Law School.
He has worked in the Criminal Division at the United States Attorney's Office in
the Southern District of New York, served as an Associate Counsel and Special
Counsel in the Office of Independent Counsel for the case of United States v. Oliver
North, and was a partner in the law firm of Mayer, Brown and Piatt. Mr. Bromwich
was the first non-New York lawyer admitted to the New York Council of Defense
Lawyers. Although he is originally from California, New York is proud to claim him.
He currently serves as Assistant to the Attorney General at the Department of Jus-
tice.
Many distinguished Americans have endorsed Mr. Bromwich. Leonard Garment
describes him as "an able and vigorous prosecutor." New York City Mayor Giuliani
characterizes him as "a consummate professional: fair, objective and reasonable."
Mr. Chairman and members of the Committee, I am pleased to recommend Mi-
chael Bromwich to you, and to urge his speedy confirmation.
Senator Feinstein. Although I have a statement, I would like
very much to defer and I would like to introduce Representative El-
eanor Holmes Norton and ask you if you would care to make an
opening statement of introduction.
STATEMENT OF HON. ELEANOR HOLMES NORTON, A
DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA
Delegate Norton. Thank you, Madam Chairperson. I do not
need to tell you that the Inspector General of the Justice Depart-
ment should be a person of unusually high integrity, great inde-
pendence, deep experience, and keen intellect. That is a description
of Michael Bromwich, whom I am happy to recommend to you.
Madam Chairwoman, today.
Michael Bromwich is a Harvard College Phi Beta Kappa. He
then went on to Harvard's John F. Kennedy School of Government,
where he earned his master's in public policy, and then to the Har-
vard Law School. Mr. Bromwich has extensive and varied legal ex-
perience of the kind that will hold him in good stead in the position
for which the President has nominated him.
He has had extensive experience as a U.S. attorney in the South-
ern District of New York. He has practiced here in the firm of
Mayer, Brown and Piatt, where he participated in complex litiga-
tion, including white collar crime and related matters, and the su-
pervision of internal corporate and organizational investigations.
379
We are proud that he took the leadership in his law firm in devel-
oping a pro bono program for the representation of indigent defend-
ants in the District of Columbia's Superior Court.
Mr. Bromwich was special counsel at the Office of Independent
Counsel during the Iran-Contra hearings. He had substantial re-
sponsibility for key parts of that investigation. He handled the pre-
trial proceedings for the immunized testimony of John Poindexter.
He represented the Independent Counsel's Office in the remand
proceedings in U.S. v. Oliver North and tried that case.
In the District, we are particularly proud that this talented
young man and his young family live here, although I concede that
he was born in California and his parents are still your constitu-
ents, Madam Chairwoman. With him here today are his wife,
Felice; his son, Daniel, who is 7; his son, Jonah, who is 4. I am
sorry to report that 1-year-old Kira had to be left home because of
age. In any case, we are very, very pleased that he lives here and
that the President has chosen to nominate him. I strongly rec-
ommend Michael Bromwich to you. Madam Chairwoman.
Senator Feinstein. Thank you very much. Representative Nor-
ton, and welcome to this House. As you probably know, I am a big
fan of yours and so I enjoy watching you in the House of Rep-
resentatives, and I thank you very much for taking time to be here
this morning.
Ms. Norton. Thank you so much.
STATEMENT OF SENATOR FEINSTEIN
Senator Feinstein. Now, I would like, as the Senator from Cali-
fornia, to make a few introductory remarks. I am very pleased to
also join with Ms. Norton in introducing Michael Bromwich, a na-
tive of California. He has been nominated by the President to serve
as inspector general at the Department of Justice.
The inspector general, who supervises a nationwide field struc-
ture of more than 400 employees, is responsible for investigating
allegations of Department of Justice employee misconduct and for
preventing waste, fraud, and abuse in the Department's component
operations and contracts through inspections and audits.
I won't repeat what Ms. Norton has said, but Mr. Bromwich was
bom in Los Angeles in 1953. He attended University Elementary
School in Westwood and James Madison Junior High School in
North Hollywood. He graduated from Ulysses S. Grant High School
in North Hollywood and, as a high school student, took courses at
UCLA. Then he went to a minor college, known as Harvard, some-
where on the east coast. He then returned to California to work
each summer, and as a Harvard law student he worked two sum-
mers at the Los Angeles firm of Irell and Manella.
His mother and father, Leo and Rose Bromwich, each emigrated
to the United States as a teenager. His father earned a doctorate
degree in California. This is your father, I believe.
Mr. Bromwich. This is actually both of them. Senator,
Senator Feinstein. Both of them earned doctorate degrees?
Mr. Bromwich. Yes.
Senator Feinstein. Both earned doctorate degrees in California
and taught for many years in the California State university sys-
tem. They have resided for more than 30 years in Van Nuys, CA.
380
As Ms. Norton pointed out, Mr. Bromwich is an attorney with
considerable experience in Federal law enforcement. He is well
qualified to serve as the inspector general at Justice. She men-
tioned his undergraduate work at Harvard, his master's degree in
public policy from the Harvard John F. Kennedy School of Govern-
ment, and a law degree from Harvard.
After 3 years in private practice, he became a Federal prosecutor
in the Southern District of New York. He served there from 1983
to 1986. He became chief deputy and then chief of the narcotics
unit. You heard about his prosecution as a member of Lawrence
Walsh's staff in the Iran-Contra investigation. Since 1989, he has
been a partner in the Washington, DC, law firm of Mayer, Brown
and Piatt, where he has specialized in white collar criminal defense
work.
Mr. Bromwich was nominated to serve as IG. The committee, I
must say, has received numerous letters from experienced law en-
forcement officials, and I think these letters attest to his intel-
ligence, his professionalism, his honesty, and his nonpartisan ap-
proach to Federal law enforcement.
I am very pleased to welcome you, Mr. Bromwich, and would ask
that you perhaps introduce your family directly to the committee.
Mr. Bromwich. Thank you very much. Madam Chairperson. As
Ms. Norton indicated, with me today is my wife, Felice Friedman,
who is a lawyer with the Office of International Affairs of the Secu-
rities and Exchange Commission. In the blue jacket is my son,
Daniel, who is 7 years old and will be 8 in July.
Senator Feinstein. Hi, Daniel.
Mr. Bromwich. The fellow in the green shirt is my son, Jonah,
who will be 5 next month.
Senator FEINSTEIN. Hi, Jonah.
Mr. Bromwich. And he may tell you May 10th is his birthday.
Senator Feinstein. Happy birthday.
Mr. Bromwich. In the interests of minimizing disruption to the
hearing, we have left their 1-year-old sister, Kira, at home, but she
will be fully briefed. [Laughter.]
Senator Feinstein. Thank you. We will now begin. Would you
please stand and raise your right hand? Do you swear that the tes-
timony you will give in this proceeding will be the truth, the whole
truth and nothing but the truth, so help you God?
Mr. Bromwich. I do.
Senator Feinstein. Thank you. Would you like to make an open-
ing statement to the committee?
TESTIMONY OF MICHAEL R. BROMWICH, TO BE INSPECTOR
GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. Bromwich. Just very briefly. Madam Chairperson, I want to
express my appreciation to the Chair for holding this hearing
today. I want to note that I am deeply honored to have been nomi-
nated to this position by President Clinton. I look forward to work-
ing with the Congress and with the leadership of the Department
of Justice in being the absolute best inspector general that I can
be.
381
QUESTIONING BY SENATOR FEINSTEIN
Senator FEINSTEIN. Mr. Bromwich, your questionnaire indicates
that while you served in the office of U.S. attorney for the Southern
District of New York, you were deputy chief, as I stated, and then
chief of the narcotics unit. It also states that you served as associ-
ate counsel and special counsel for the Office of Independent Coun-
sel on the Iran-Contra investigation.
How do you believe that these investigations and your manage-
ment background prepare you for this office?
Mr. Bromwich. Madam Chairperson, I spent roughly 7 years in
Federal law enforcement, as you pointed out, first with the U.S. at-
torney's office in the Southern District of New York and then with
the independent counsel responsible for investigating Iran-Contra.
During those 7 years, I gathered substantial experience in running,
managing, supervising complex investigations, and in my capacity
as deputy chief and then briefly as chief of the narcotics unit, I had
responsibility for supervising from 20 to 22 attorneys who were
working on a large number of quite important narcotics investiga-
tions.
I had similar supervisory duties when I worked for Judge Walsh
on the Iran-Contra investigation. I, for a substantial period of time,
supervised a group of from 7 to 9 lawyers and 7 to 10 FBI and IRS
agents in doing a fairly substantial piece of that investigation that
included looking at whether employees of the Central Intelligence
Agency and Department of State committed any crimes. •
So, I believe that my experience in Federal law enforcement and
my experience in managing people, both lawyers and investigative
agents, qualifies me for the position of inspector general.
Senator FEINSTEIN. Thank you very much. As you, I am sure, are
aware, at one time Attorney General Reno was considering merging
the Office of IG and the Office of Professional Responsibility into
an expanded Office of Inspector General. Recently, she decided not
to merge the two offices. That means, I take it, that the Office of
Professional Responsibility will continue to investigate allegations
of wrongdoing against attorneys and law enforcement agents, and
that the Office of Inspector General will be responsible for the in-
vestigations and audits relating to the economy and efficiency of
the Justice Department's programs and operations, and for detect-
ing and preventing fraud and abuse, as I have stated.
Is this your understanding of how the functions will be divided?
Mr. Bromwich. Yes, that is generally correct. Madam Chair-
person. There will be responsibilities for the Office of Inspector
General in investigating certain sorts of employee misconduct, but
you are quite right that OPR will continue to have principal re-
sponsibility for investigations of misconduct that relate to allega-
tions lodged against attorneys and law enforcement agents.
Senator FEINSTEIN. Do you believe there will be overlap, and if
so, how would it be handled?
Mr. Bromwich. There will undoubtedly be overlap. There may be
cases in which lawyers and law enforcement agents are involved
that also involve other employees of the Department of Justice, and
I am quite hopeful that I will be able to work closely with the Of-
382
flee of Professional Responsibility to work cooperatively on matters
in which we both have an interest.
At my initiative, I met recently with Mr. Shaheen and his dep-
uty, Mr. Rogers, who are the top two officials in the Office of Pro-
fessional Responsibility. It is not a secret that there has been ten-
sion in the past between OPR £ind the IG, and I am hopeful that
we will be able to launch a new era and we will be able to mini-
mize turf battles and maximize cooperation.
Senator Feinstein. I think that is excellent. One of the things
that I have been struck with is what a large department Justice
is, with over 90,000 employees, and so I think your job is really a
very critical and important one in the Department.
Mr. Bromwich. I agree with you, Madam Chairperson.
Senator Feinstein. I understand that the Office of Inspector
General is divided into four sections — investigations, audits, inspec-
tions, and management — each headed by an assistant inspector
general. What will be your enforcement priorities or goals for each
of these sections?
Mr. Bromwich. Madam Chairperson, what the inspector general
has done up until now, and this is what I plan to continue, is to
try to take a look at what are the most significant high-impact,
high-risk areas of the Department's operations, and that is not just
restricted, as you well know, to the Department of Justice. It also
includes the U.S. attorneys offices. It includes INS, it includes the
Marshals Service, it includes DEA, it includes the FBI, and so
forth.
We are the principal sentinel to make sure that the Department
is run as efficiently and effectively as possible, and we will con-
tinue to target those areas that are high-risk areas where there are
substantial public funds expended and where there is a risk that
public moneys are wasted. That is my principal job.
Senator Feinstein. What would you say would be your number
one priority when you go into that office?
Mr. Bromwich. My number one priority is, in every way that I
possibly can, both through the investigations, audits, and inspec-
tions functions, to promote the integrity of departmental personnel
and departmental programs.
Senator Feinstein. Now, it is fair to say that the Department
that you are going to head is really the watch dog for Justice. I
know that you are an employee at Justice, an assistant to the At-
torney General. Do you feel you can go in and give her bad news,
if necessary?
Mr. Bromwich. Senator, it is my job to give her bad news, if it
is necessary, and I have had a number of conversations, including
recent conversations, with both the Attorney Greneral and the Dep-
uty Attorney Generzd, and they have expressed their intention to
give me whatever access that I need to them and to the Depart-
ment as a whole in order to carry out the functions that I have.
They do recognize that I have responsibilities that require me to
be independent, and I have no indication that they expect me to
bow in that independence and to do things that will attempt to
curry favor with them. They understand what the function and the
role of the inspector general must be.
383
Senator Feinstein. If you could have your druthers in terms of
Justice within the area of this responsibility, 5 years down the line
how would you like to be looked at as an inspector general?
Mr. Bromwich. I would like in the future to be looked at as
somebody who was a leader in the inspector general community
throughout the executive branch of the Government, and someone
who has left a record of doing ever5rthing within one person's and
one organization's power to make the Department of Justice the
most efficient, the most effective department in the Federal Gov-
ernment, and to have increased integrity in the Department in a
way that everyone will acknowledge.
Senator FEINSTEIN. I will just once again put a priority of mine
out on the table for you. I have told virtually everybody as a mem-
ber of this committee when I have been present at one of these
hearings that, as a Californian, a real department within Justice
that I would like to see elevated in priority is INS, and have sub-
mitted some legislation that could be helpful in doing that by pro-
viding the funding.
I would hope that as you look at waste, fraud, abuse and other
things that you would recognize that this today is a very important
department which has functioned as more or less a stepchild or an
orphan within the Department for a long time, and the time has
really come to see that it has the wherewithal to do the job that
it should be doing.
Mr. Bromwich, I completely agree with you. Senator. As you
probably know, a tremendous amount of the work that is currently
done by the inspector general focuses on INS in audits, in inspec-
tions, in investigations, and I think that is critical to continue that
effort and, if possible, to enhance it because there is no doubt that
INS is an absolutely critical part of the Department of Justice. I
recognize that.
Senator Feinstein. Since no other Senators have come — I mean,
this is just a wonderful way to have one of these hearings, I must
say.
Mr. Bromwich. It is fme for me so far. Senator.
Senator Feinstein. Do you have any closing comments?
Mr. Bromwich. I really don't, Senator. It has been a longer road
than I expected from the time I was offered the job until the time
I appeared before this committee, and I am just very much looking
forward to moving on, if and when I am confirmed, and assuming
the responsibilities of the Inspector General of the Department of
Justice.
Senator Feinstein. Well, thank you very much. I look forward to
supporting your nomination and being able to work with you as a
Senator. I thank you very much.
Mr. Bromwich. Thank you very much. Senator Feinstein.
Senator Feinstein. This hearing is adjourned.
[Whereupon, at 11:23 a.m., the committee was adjourned.]
[Submissions for the record follow:]
384
SUBMISSIONS FOR THE RECORD
X. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (including any former names used)
Michael Ray Bromwich
2. Address: List current place of residence and office
addresses)
Residence:
3806 Military Road, N.W., Washington D.C. 20015
Office Address:
United States Department of Justice
10th and Constitution Avenue, N.W.
Rood 4121
Washington D.C. 20530
3. Date and place of birth.
December 19, 1953; Los Angeles, California.
Marital Status (include maiden name of wife or husband's
name). List spouse's occupation, employer's name, and
business address (es) .
Felice B. Friedman
Lawyer
Securities and Exchange Commission
Office of International Affairs
450 Fifth Street, N.W.
Washington D.C. 20549
5. Education: List each college and law school you have
attended, including dates of attendance, degrees
received, and dates degrees were granted.
Harvard College, 1971-76, A.B., June 1976.
John F. Kennedy School of Government, 1977-1980,
M.P.P., 1980.
385
Harvard Law School, 1976-80, J.D., 1980.
List (by year) all business or professional
corporations, companies, firms, or other
enterprises, partnerships, institutions and
organizations, non-profit or otherwise, including firms,
with which you were connected as an officer, director,
partner, proprietor, or employee since graduation from
college.
A. Summer 1976:
Sherman Oaks Swim School
Sherman Oaks, California
Swim Instructor
B. Svimmer 1977:
Xrell i Manella
Los Angeles, California
Summer Law Associate
Summer 1978:
U.S. Department of Justice
Washington D.C. 20530
Special Assistant
Summer Law Clerk (6 weeks)
2. Irell t Manella
Los Angeles, California
Svimmer Law Associate (6 weeks)
D. School Year 1978-79:
John F. Kennedy School of Government
Harvard University
Cambridge, Massachusetts
Teaching Assistant
3 -
386
E. Spring 1979:
Consultant (with Professors James Q. Wilson
and Mark H. Moore)
Federal Bureau of Investigation
Washington D.C.
Summer 1979:
Fried, Frank, Harris, Shriver i Kampelman
Washington D.C.
Summer Lav Associate
School Year 1979-80:
John F. Kennedy School of Government
Harvard University
Cambridge, Massachusetts
Teaching Assistant
H. June 1980 - May 1983:
Foley t Lardner
Washington D.C.
Associate
May 1983 - January 1987:
United states Attorney's Office for the
Southern District of New York
Mew York, New York
Assistant United States Attorney
January 1987 - October 1989:
November 1989 - January 1990 (part-time)
May 1991 - September 1991 (part-time) :
Office of the Independent Counsel:
Iran-contra
Washington D.C.
Associate Counsel (*87-'89)
Special Counsel (part-time assignments)
- 4 -
387
October 1989 - November 30, 1993;
Mayer, Brown t Piatt
Washington D.C.
Partner
December 1, 1993-present:
Assistant to the Attorney General
United states Department of Justice
Washington D.C.
Military Service: Have you had any military service?
If so, give particulars, including the dates, branch of
service, rank or rate, serial number and type of
discharge received.
No.
Honors and Awards: List any scholarships, fellowships,
honorary degrees, and honorary society memberships that
you believe would be of interest to the Committee.
Summa Cum Laude from Harvard College; Phi Beta
Kappa .
9. Bar Associations: List all bar associations, legal or
judicial-related committees or conferences of which you
are or have been a member and give the titles and dates
of any offices which you have held in such groups.
Member of D.C. Bar.
B. Member of American Bar Association and
following sections and subcommittees:
1. Litigation Section
(Complex Crimes Committee)
2. Criminal Justice Section
(White Collar Crime Committee)
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388
C. New York Council of Defense Lawyers.
D. Criminal Justice Act Panels:
X. U.S. District Court, District of Columbia
2. 0.8. District Court, District of Karyland
10. Other Memberships: List all organizations to which you
belong that are active in lobbying before public
bodies. Please list all other organizations to which
you belong.
Lobbying Organizations;
World Wildlife Fund
American Automobile Association
Friends of WETA (Public Television)
Other Organizations;
Council for Excellence in Government
United states Holocaust Memorial Museum
Friends of the National Zoo
Temple Sinai
Murcta Home & School Association (DC Public
Schools PTA)
Harvard Law School Association
Northwest Branch Swim Club
11. Court Admission: List all courts in which you have
been admitted to practice, with dates of admission and
lapses if any such memberships lapsed. Please explain
the reason for any lapse of membership. Give the same
information for administrative bodies which require
special permission to practice.
United states Supreme Court (1989)
- 6 -
389
United states Court of Appeals for the 2nd Circuit
(1984)
United States Court of Appeals for the O.C.
Circuit (1989)
United States District Court for the District of
Columbia (1989)
United States District Court for the District of
Maryland (1991)
District of Columbia Court of Appeals (1980)
Superior Court of the District of Columbia (1980)
12. Published Writings: List the titles, publishers, and
dates of booJcs, articles, reports, or other published
material you have written or edited. Please supply one
copy of all published material not readily available to
the Committee. Also, please supply a copy of all
speeches by you on issues involving constitutional law
or legal policy. If there were press reports about the
speech, and they are readily available to you, please
supply them.
A. Boo)t Review, Law t Policy in International
Business. Vol. 14:1227 (1983)
B. Participant in panel discussion, subsequently
published as, "Symposium Issue on the Selection
and Function of the Modern Jury," The American
University Law Review. Vol. 40, No. 2, Winter
1991.
C. "Sentencing of Organizations," in Phylis
Skloot Bamberger, ed.. Practice Under the New
Federal Sentencing Guidelines. Prentice-Hall Law t
Business (1992 & 1993 Supp.)
(co-author) .
- 7 -
390
D. Participant in symposiiun, subsequently
published as, "Iraqgate: The Making of an
Investigation," Harper's. January 1993.
E. "Today is the Day to Implement Compliance
Programs," New York Law Journal. July 26, 1993.
13. What is the present state of your health? List the
date of your last physical examination.
Excellent. February 1991.
14. Public Offices: State (chronologically) any public
offices you have held, other than judicial offices,
including the terms of service and whether such
positions were elected or appointed. State
(chronologically) any unsuccessful candidacies for
public office.
A. Assistant United States Attorney, Southern
District of New York (1983-87)
1. Deputy Chief Narcotics Onit (September
1985-December 1986)
2. Chief, Narcotics Unit (December 1986-
January 1987)
B. Associate Counsel, Office of Independent
Counsel: Iran-Contra (1987-89)
C. Special Counsel, Office of Independent
Counsel: Iran-Contra (December 1989-January 1990;
May-September 1991) .
- 8 -
1
391
15. Legal Career;
a. Describe chronologically your law practice and
experience after graduation from law school
including:
1. whether you served as a clerk to a judge, and
if so, the name of the judge, the court, and
the dates of the period you were a clerk;
2. whether you practiced alone, and if so, the
addresses and dates;
3. the dates, names and addresses of law firms or
offices, companies or governmental with which
you have been connected, and the nature of
your connection with each;
b. 1. What has been the general character of your
law practice dividing it into periods
with dates if its character has changed
over the years?
2. Describe your typical former clients, and
mention the areas, if any, in which you have
specialized.
c. 1. Did you appear in court frequently,
occasionally, or not at all? If the frequency
of your appearances in court varied, describe
each such variance, giving dates.
2. What percentage of these appearances was in:
(a) federal courts;
(b) state courts of record;
(c) other courts.
3. What percentage of your litigation was:
(a) civil;
(b) criminal.
4 . State the number of cases in courts of
record you tried to verdict or judgment
(rather than settled) , indicating whether you
were sole counsel, chief counsel, or associate
counsel .
392
5. What percentage of these trials was:
(a) jury;
(b) non-jury.
I did not clerk for a judge after I graduated from
Harvard Law School in 1980, nor have I ever never
practiced lav by myself. The chronology of my legal
career is as follows:
From June 1980 to 1983, I was an associate in the
D.C. office of Foley ( Lardner, a lav firm based in
Milwaukee, Wisconsin. While I worked at the firm, the
address of the D.C. office was 1775 Pennsylvania
Avenue, N.W., Washington, D.C, 20006.1/ During my
time at the firm, I worked on projects involving
litigation, regulatory enforcement, and administrative
lav, as veil as in various other areas of the firm's
practice. With the exception of one pro bono criminal
appeal, my practice consisted entirely of civil
matters. I did some legal work on behalf of a trade
association in the oil industry and for various
Milwaukee-based corporate clients of the firm. With
the exception of the criminal pro bono matter referred
to above, which I argued in the D.C. Court of Appeals,
I made no court appearances in either state or federal
court.
In May 1983, I was appointed an Assistant United
States Attorney for the Southern District of New York.
The address of that office is One Saint Andrews Plaza,
New York, New York, 10007. I was hired by John S.
Martin, Jr., now a federal judge in the Southern
District of New York, but served most of my tenure
under Rudolph W. Giuliani, now the Mayor of New York
City. My entire tenure was served in the Criminal
Division and more than 95% of the matters that I
handled while in the Office was criminal. While an
Assistant United States Attorney, I tried approximately
a dozen cases, ranging in length from three days to two
months. With one exception, these trials were all
before a jury. In all of these cases, I was lead
1/ The firm's D.C. Office has moved to 3000 K Street, suite
500, Washington D.C.
- 10 -
393
counsel for the government. 2/ In approximately half
of these cases, I was sole counsel for the government.
In January 1984, after 10 months in the General
Crimes Unit, I was transferred to the Narcotics Unit.
In September 1985, Mr Giuliani appointed me Deputy
Chief of the Narcotics Unit. In December 1986, shortly
before I left the O.S. Attorney's Office, Mr. Giuliani
appointed me Chief of the Narcotics Unit, with
responsibility to direct and supervise the work of more
than 2 0 lawyers. During the period I held these
supervisory positions, I continued to handle my o%m
investigations and cases. As a result, I was in court
very frequently during my entire stay in the 0.8.
Attorney's Office. In addition to the trials that I
tried to verdict, I argued approximately a dozen cases
in the U.S. Court of Appeals for the 2nd Circuit.
In January 1987, I was appointed Associate Counsel
by Lawrence E. Walsh, who in December 1986 was
appointed Independent Counsel by a special division of
the D.C. Circuit to investigate the Iran-Contra affair.
I remained an Associate Counsel until October 1989.
The address of the Independent Counsel was 555 13th
Street, M.W., Suite 701W, Washington, D.C, 20004. I
was designated by Judge Walsh as one of three members
of the trial team in D.S. v. Oliver North, which was
tried from January to May 1989. Shortly after the
North case ended, I left the Office to return to
private practice. On two occasions after my departure,
I was appointed Special Counsel by Judge Walsh to
handle matters relating to work that had taken place
while I was still with the Office. Because of the
nature of the Office, all of my work was in federal
court and all related to criminal matters. I had no
involvement in any aspect of the Independent Counsel's
investigation that took place from 1988 through 1992.
Nor did I have any role in drafting, reviewing or
editing any aspect of the Independent Counsel's final
report.
From October 1989 through November 30, 1993, I was
a partner in the D.C. office of Mayer, Brown & Piatt.
II With one exception, I tried these cases from beginning to
snd. The exception involved my completion of a trial begun by an
Assistant D.S. Attorney who was arrested in mid-trial. In that
:ase, I completed presenting the government's case, cross-
ixamined the witnesses called during the defense case, and
lelivered the summation. This case is further described in my
inswer to question # 16, item # 5.
- 11 -
394
The address of the firm's D.C. Office is 2000
Pennsylvania Avenue, N.W., Suite 6500, Washington,
D.C, 20006. I specialized in white-collar criminal
defense and handled a wide variety of criminal matters
and quasi-criminal matters (administrative
investigations that are subject to referral to the
Justice Department for criminal prosecution) , as well
as a small number of civil litigation matters. For the
most part, I represented individuals in grand jury
investigations and in connection with administrative
investigations and proceedings. In addition, I
developed an expertise in counseling companies on
formulating and implementing internal compliance
programs that satisfy the requirements established by
the United States Sentencing Commission in the
organizational sentencing guidelines, which became
effective in November 1991. I supervised internal and
private investigations on behalf of various individual
and corporate clients. I would estimate that my
practice was approximately 80% criminal or quasi-
criminal and 2 0% civil.
During my four years with the firm, I tried one
local and one federal criminal case to a jury. I also
tried one non-jury case. I have served on the Criminal
Justice Act panels of the U.S. District Courts for the
District of Columbia and Maryland. I handled numerous
criminal matters — plus one administrative and one
civil matter — on a pro bono basis and have
established and headed a criminal pro bono progrzun at
my firm in which law firm attorneys represent indigent
defendants in D.C. Superior Court. More than 75% of my
practice was in federal court, with the remainder in
various state and local courts. Although the frequency
of my court appearances while a partner at Mayer, Brown
was far less than when I was a prosecutor, I
nevertheless had a substantial number of court
appearances. In addition to the three cases I have
tried, I have also conducted evidentiary hearings and
argued various motions.
16. Litigation; Describe the ten most significant
litigated matters which you personally handled. Give
the citations, if the cases were reported, and the
docket number and date if unreported. Give a capsule
summary of the substance of each case. Identify the
party or parties whom you represented; describe in
detail the nature of your participation in the
litigation and the final disposition of the case. Also
state as to each case:
- 12 -
395
(a) the date of representation;
(b) the name of the court and the name of the judge or
judges before whom the case was litigated; and
(c) the individual name, addresses, and telephone
numbers of co-counsel and of principal counsel for each
of the other parties.
1. Dnited States v. Anthony Bari. et al., June-
December 1983, Case No., 83 Cr. 462 (DNE) , in the
Dnited States District Court for the Southern District
of Hew York, before the Honorable David N. Edelstein,
United States District Judge.
The decision of the Second Circuit affirming the
convictions of the defendants is reported at 750 F. 2d
1169 (2d Cir. 1984) .
I directed an investigation conducted by the
U.S. Marshals Service in conjunction with the
Bureau of Prisons into an attempted escape from
the Metropolitan Correctional Center in Manhattan.
The attempt was launched from a 9th floor
dormitory that housed approximately fifteen
inmates. Because no inmate succeeded in getting
out of the dormitory and no prison official saw
the activities of the inmates who were trying to
escape, we had to base our case largely on the
testimony of three inmate-witnesses who resided in
the dormitory at the time of the attempted escape.
Eventually, six inmates were indicted.
After a three-week trial, in which I served
as lead trial counsel, the jury convicted five of
the six inmates. The convicted inmates were
sentenced to substantial terms of imprisonment
that were set to run consecutively to the
substantial sentences they were serving when they
attempted to escape.
Opposing Counsel: Richard F. Ziegler, Esq. (Anthony
Bari), Cleary, Gottlieb, Steen t Hamilton, One Liberty
Plaza, New York, New York, 10006, (212) 225-2000; Frank
Wohl, Esq. (Tyrone Faines) , Lankier, Siffert i Wohl,
500 Fifth Avenue, 33rd Floor, New York, New York,
10110, (212) 921-8399; and Anthony J. Ferrara, Esq.
(Marc Manns), Polstein & Ferrara, Two Park Avenue, New
York, New York, 10016, (212) 725-1166.
- 13 -
396
2. Dnited States v. Richard Calvin Brovn. Rudolph
Cook, et al. . Case No. 88 84 Cr. 767 (RLC) , November
1983-April 1984, D.S. District Court for the Southern
District of New York, before the Honorable Robert L.
Carter, 0.8. District Judge.
I investigated and prosecuted a case
involving a series of armed bank robberies in
Manhattan and the Bronx, one of which included the
perpetrators taking a bank customer hostage during
the robbery. Working with the New York Joint Bank
Robbery Task Force — an entity made up of FBI
agents and New York City police detectives — we
determined that the robberies had been committed
by the members of loosely-knit organization based
in the Bronx, many of whose members had recently
been released from prison after serving federal
prison sentences for prior bank robberies.
Members of the Task Force were able to obtain
confessions from several of the persons involved
in the robberies. We obtained guilty pleas from
four of the defendants, negotiated cooperation
agreements with their lawyers, and relied on their
testimony as well as other proof to prosecute the
two remaining defendants. After a week-long
trial, the jury convicted both defendants on all
of the counts in which they were charged. The
defendants both received lengthy prison sentences.
Opposing Counsel: Thomas Liotti, Esq. (Richard Calvin
Brown) , Liotti and Skelos, 1001 Franklin Avenue, Suite
300, Garden City, New York, (516) 739-3700; Susan
Kellman, Esq. (Rudolph Cook) , 20 Vesey Street, New
York, New York, (212) 732-7200.
3. Dnited States v. Alberto Pacheco-Garcia. October
1983-May 1984, Case No. SS 84 Cr. 64 (LPG), in the
Dnited States District Court for the Southern District
of New York, before the Honorable Lee P, Gagliardi,
Dnited States District Judge.
I supervised the investigation and
prosecution in a case involving a ring of
defendants in the Bronx and Manhattan who
defrauded individuals and banks out of substantial
sums of money. The defendants' fradulent scheme
involved stealing large numbers of federal
government checks from the mails, forging the
- 14 -
397
signatures of the rightful recipients, opening
bank accounts under assumed names, depositing the
stolen checks in the bank accounts, and writing
checks on those bank accounts before the federal
government could determine that the checks were
stolen.
I coordinated the investigation conducted
jointly by the Secret Service and the U.S. Postal
Inspectors. By the conclusion of the
investigation, approximately a dozen defendants
pled guilty. The only defendant who went to trial
was Alberto Pacheco-Garcia, who was convicted of
conspiracy to defraud the United States and theft
of government property. I was sole government
counsel at trial.
Opposing Counsel: Harry C. Batchelder, Esq. (Pacheco-
Garcia), 123 William Street, New York, New York, 10038,
(212) 233-1884; Roland Thau, Esq. (E. Dulac) , Federal
Defender Services Unit of the Legal Aid Society, 52
Duane Street, New York, New York, 10007, (212) 285-
2830.
4. United States v. Harold Barr. et al.. January 1984-
June 1985, Case No. 84 Cr. 82 (MEL), in the United
States District Court for the Southern District of New
York, before the Honorable Morris E. Lasker, United
States District Judge.
The Second Circuit's decision affirming the
convictions of the defendants convicted at trial, while
remanding Barr's case for further proceedings before
the District Court, is reported as United States v.
Cohen, at 796 F. 2d 20 (1986). The District Court's
opinion on certain pre-trial motions is reported at 605
F. Supp. 114 (6.D.N.Y. 1985). The District Court's
opinion, following evidentiary hearings held pursuant
to the Second Circuit's remand, is reported at 1989
U.S. District LEXIS 4294 (1989).
From January 1984, when agents of the New
York Drug Enforcement Task Force arrested three
defendants following a large-scale cocaine
transaction, until March 1985, when a two-month
long trial ended with the conviction of the
principal defendants, I directed and supervised an
investigation of large-scale narcotics trafficking
involving cocaine, massive amounts of marihuana,
and various psychedelic drugs. We enlisted the
- 15 -
398
cooperation and assistance of federal, state, and
local police officials throughout the country and
from the Royal Canadian Mounted Police.
The lead defendant, Harold Barr, purchased
multi-kilogram quantities of cocaine from
Colombian nationals based in Florida and
distributed the cocaine and the other drugs to a
network of drug distributors in New York City.
The members of Barr's distribution network in turn
sold the drugs to customers from around the
country — including Massachusetts, North
Carolina, Michigan, and California — and from
Canada.
During the course of the investigation, we
secured the cooperation of numerous co-
conspirators, including two of Barr's top
lieutenants, one of whom was his first cousin. In
all, approximately twenty defendants either pled
guilty or were convicted at trial. The lead
defendant, Harold Barr, was convicted of
conducting a continuing criminal enterprise and
sentenced to a 2 0-year term of imprisonment. 3/
Opposing Counsel: Michael Kennedy, Esq. (Harold
Barr), 425 Park Avenue, New York, New York, (212) 935-
4500; Michael Washor, Esq. (Eliot Cohen), 275 Madison
Ave., New York, New York, (212) 980-6110; Robert
Katzberg, Esq. (Jason Steinberg), Kaplan & Katzberg,
767 Third Avenue, 26th Floor, New York, New York, (212)
750-3100; Barry Fallick, Esq. (Gary Nudelman) , Rochman,
Platzer, Fallick, Rosmarin & sternheim, 666 Third
Avenue, New York, New York, 10017, (212) 697-4090; and
Myron Beldock, Esq. (Oona Lind) , Beldock, Levine t
Hoffman, 99 Park Avenue, New York, New York, 10016,
(212) 490-0400.
5. Dnited States v. Gordon Lawson and Milan Lama. May-
June 1985, Case No. 85 Cr. 403 (EW) , in the Onited
States District Court for the Southern District of New
York, before the late Honorable Edward Weinfeld, Dnited
States District Judge; and Dnited states v. Louis. July
1985-March 1986, Crim. No. 85 Cr. 708 (KTD) , in the
Dnited States District Court for the Southern District
of New York, before the Honorable Kevin Thomas Duffy.
3/ Following my departure from the D.6. Attorney's office,
Barr's sentence was reduced by the District Court.
- 16 -
399
The Second Circuit summarily affirmed the
convictions of the two defendants in Lawson in an
unpublished order. The Second Circuit's affirmance of
the Louis conviction is reported at 814 F.2d 852
(1986) .
These two trials involved the shipment of
heroin from Hong Kong to New York City through
Seattle, Washington, in March 1985. The Lawson
case was originally handled by another Assistant
United States Attorney, who was arrested in mid-
trial for having stolen money and drugs —
including the heroin exhibit relating to this case
— from a safe in the O.S. Attorney's Office. The
United States Attorney, Rudolph w. Giuliani, asked
me to complete the trial on behalf of the
government and Judge Weinfeld granted me a
postponement of the trial over a long weekend to
become familiar with the case and review the
transcript of proceedings that had already taken
place. After the weekend adjournment, I presented
the balance of the government's case and cross-
examined one of the defendants. Both defendants
were convicted and sentenced to terms of
imprisonment. The Second Circuit summarily
affirmed their convictions.
Following the completion of the Lawson trial,
the investigation focused on the source of the
heroin in Hong Kong. DEA agents based in Hong
Kong, working together with Hong Kong customs and
police officials, located and arrested George
Kathovalappil Louis. Louis waived extradition and
was transported to the O.S. in September 1985. I
was sole trial counsel in Louis's trial. Louis
was convicted by a jury and sentenced to a
siibstantial prison term. The Second Circuit
affirmed his conviction but remanded to the
District Court for resentencing by another judge
based on its determination that the District Court
had sua sponte based its sentence on improper
considerations .
Opposing Counsel: John P. Curley, Esq. (Gordon
Lawson) , Federal Defender Services Onit of The Legal
Aid Society, 52 Duane Street, New York, New York,
10007, (212) 285-2830; Louis R. Aidala, Esq. (Milan
Lzuna), 1133 Avenue of the Americas, New York, New York,
(212) 302-4466; and David Eames, Esq. (George Louis),
450 Park Avenue, New York, New York, (212) 223-3000.
- 17 -
400
6. Dnited States v. Delvecchio. September 1985-June
1986, Case Mo. 86 Cr. 305 (ONE), United States District
Court for the Southern District of New York, before the
Honorable David N. Edelstein, United States District
Judge .
The decision of the U.S. Court of Appeals for the
Second Circuit is reported at 816 F. 2d 859 (2d Cir.
1986) .
I was sole trial counsel for the government
in a case involving a conspiracy by the two
defendants and others to sell approximately
twenty-five kilograms of high-grade heroin for
approximately $ 2.5 million dollars. Although two
other participants in the operation had been
arrested in November 1982, the identity of one of
the two defendants whom I prosecuted was not known
until the spring of 1986 and the case against the
other was at the time considered weak. In
addition, one of the key witnesses in the case had
been murdered in a gangland-style execution.
We gathered substantial additional evidence
to strengthen the case against the two defendants.
Following their arrest, the two defendants were
convicted of conspiracy to distribute heroin and
sentenced to substantial terms of
imprisonment. 4/
Opposing Counsel: David Levitt, Esq. (Richard
Delvecchio) and the late Jack Lipson, Esq., Federal
Defender Services Unit of the Legal Aid Society, 52
Duane Street, New York, New York, 10007, (212) 285-
2830; Daniel Felber, Esq. (Angelo Amen), 285 Nest
Broadway, New York, New York, (212) 422-4600.
7. United States v. Amen, et al.. February-December
1986, Case No. SSS 86 Cr. 60 (RLC) , United States
District Court for the Southern District of New York,
before the Honorable Robert L. Carter, United States
District Judge.
^1 The two defendants were also convicted by the jury of
attempting to distribute five kilograms of heroin. Their
conviction on the attempt charge was reversed by the Second
Circuit.
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401
The decision of the 0.8. Court of Appeals for the
Second Circuit is reported at 831 F. 2d 373 (2d Cir.
1987), cert, denied (as Abbamonte v. U.S.), 485 U.S.
1021 (1988). The opinion by the District court
disposing of the defendants' pre-trial motions is
reported at 649 F. Supp. 974 (S.D.N.Y. 1986) .5/
I directed the investigation and was lead
trial counsel in a case involving high-level
heroin trafficking in New York and Washington,
D.C. Relying on court-ordered wiretaps, telephone
calls taped at FCI Lewisburg, and multiple
undercover purchases of high-grade heroin, we were
able to demonstrate that two federal prison
inmates arranged substantial heroin transactions
through their confederates outside the prison by
means of coded telephone calls and in-person
visits in the prison's visiting room. In the
final days of the investigation, we executed a
search warrant at the residence of one of the
defendants located on Long Island, New Yor)c, and
seized five )cilograms of high-grade heroin, eight
kilogrzuus of high-grade cocaine, and $ 5.6 million
in cash, which at the time was the largest cash
seizure from an individual in DEA history.
The principal defendants, many of whom had
substantial organized crime connections, either
pled guilty prior to trial, or — in the case of
the three lead defendants — were convicted after
a month-long trial. The lead defendant, Oreste
Abb2unonte, Jr., one of the most notorious drug
trafficlcers in New Yor)c City history — and whose
exploits as a teenager were chronicled in David
Dur)c's The Pleasant Avenue Connection — was
convicted of conducting a continuing criminal
narcotics enterprise and was sentenced to life in
prison without parole at FCI Marion where he has
limited access to telephones. Most of the
remaining convicted defendants, including Michael
Paradise, a close associate of Gambino family boss
John Gotti, received prison terms ranging from 20-
40 years.
Opposing Counsel: Gerald L. Shargel, Esq. (Philip
Vasta), 150 E. 58th Street, New York, New York, (212)
486-1717; Howard L. Jacobs, Esq. (Michael Paradise),
/ The second Circuit's decision on the pre-trial detention of
ne of the defendants who subsequently pled guilty is reported as
nited States v. Romano. 799 F. 2d 17 (2d Cir. 1986) .
19 -
402
401 Broadway, New York, New York, (212) 431-3710;
Martin G. Weinberg (Oreste Abbamonte, Jr.)> Oteri,
Weinberg t Lawson, the Statler Building, 2 0 Park Plaza,
Suite 905, Boston, Massachusetts, 02116 (617) 227-3700.
8. Dnited states v. Arnold Souitieri. Grim. No. SSS 86
Cr. 60 (RLC) , September 1985-December 1986, U.S.
District Court for the Southern District of New York,
before the Honorable Robert L. Carter, Dnited States
Distz'ict Judge.
Squitieri was a defendant in the case
described in #7 above. Although he was originally
one of the principal targets of the investigation,
and although wiretaps were placed on his residence
phones for several months, he played a limited
role in the events that formed the core of that
case. Squitieri was acquitted by the jury.
Despite Squitieri *s substantial wealth, he
claimed shortly after bis arrest that he could not
afford to retain counsel. The Court appointed
Squitieri a lawyer at government expense. After
the trial was over, we sought to compel Squitieri
to repay the government the amounts it had
expended in providing him with trial counsel. We
did so based on solid information that Squitieri
was a member of the Gambino crime feunily, was a
particularly close associate of John Gotti, and
derived substantial profits from not only
narcotics trafficking but other organized criminal
activities as well. After I took Squitieri 's
deposition and and we made a detailed submission
to the court. Judge Carter ordered Squitieri to
reimburse the goveriunent for the payments it made
to Squiteri's court-appointed lawyer.^/
Opposing Counsel: Michael Hurwits, 299 Broadway, New
York, New York, (212) 619-4240; Robert Kiernan, Esq.,
Hoffman and Pollok, 260 Madison Avenue, New York, New
York, (212) 679-2900.
9. Dnited States v. John M. Poindexter. Oliver L.
North. Richard Secord and Albert Hakim. Cr. No. 88-080-
01 (HHG), -02 (GAG), -03, and -04 March 1988 through
6/ Approximately a year later, Squitieri was convicted of
narcotics trafficking in the District of New Jersey and was
sentenced to a lengthy term of imprisonment.
- 20 -
403
January 1990, December 1989-January 1990, D.s. District
Court for the District of Columbia, before the late
Honorable Gerhard A. Gesell (North) and the Honorable
Harold H. Greene (Poindexter) , 0.8. District Judges.
I was involved in various aspects of the
cases against Admiral Poindexter, Lt. Col. Horth,
and Messrs. Secord and Hakim. The four defendants
were indicted in March 1988. During the period
March- June 1988, I participated in various pre-
trial proceedings and argued some of the pre-trial
motions. In June 1988, Judge Gesell granted the
defendants' motions for severance and ordered four
separate trials, one for each of the defendants.
I was selected as a member of the three-
person trial team that represented the government
in the prosecution of Lt. Col. North. John W.
Keker, Esg., was chief trial counsel. The charges
against Lt. Col. North included, among others,
making false statements to Congress, obstructing
Congressional investigations, altering and
destroying government documents, and accepting an
unlawful gratuity. I examined some of the
government's key accomplice witnesses and cross-
examined a number of defense witnesses. Lt. Col.
North was convicted on three counts and acquitted
on the remaining counts by the jury. Lt. Col.
North's convictions were reversed by the D.C.
Circuit. Following a remand to the District
Court, the government dropped the charges against
him.
The decision of the D.C. Circuit Court of Appeals
is reported at 910 F. 2d 843 (D.C Cir. 1990), opinion
withdrawn and superseded in part on rehearing. 920 F.
2d (D.C. Cir. 1990), cert, denied. Ill S. Ct. (1991).
The decisions by Judge Gesell on various pre-trial
motions produced twenty-three reported opinions. As
published, they are reported in clusters: 698 F. Supp.
322 (D.D.C. 1988); 708 F. Supp. 364-40S (D.D.C. 1988-
89) (ten separate opinions); 713 F. Supp. 1436-1455
(D.D.C. 1989) (ten separate opinions); 716 F. Supp.
644-656 (D.D.C. 1989) (two separate opinions) .
Opposing Counsel: Brendan V. Sullivan, Jr., Esq., and
Barry Simon, Esq., Williams & Connolly, 725 Twelfth Street.,
N.W., Washington D.C, 20005, (202) 434-5000.
- 21
404
After the Worth case was over, and after I
had left the Office to enter private practice, I
represented the Independent Counsel in certain
pre-trial proceedings in the case against Admiral
Poindexter. The pre-trial proceedings related to:
1) whether principal trial counsel for the
government, Dan K. Webb and Howard M. Pearl, had
been exposed to the immunized testimony provided
to Congress by Admiral Poindexter in July 1987;
and 2) whether the witnesses the government
intended to call at Poindexter 's trial were so
tainted through such exposure that their testimony
should be suppressed at trial.
Judge Greene ruled that there was no basis
for disqualifying Messrs. Webb and Pearl from
conducting the trial for the government. Be also
ruled that all of the witnesses from whom he
heard testimony during the pre-trial hearing could
properly testify at trial, with the exception of
certain limits being imposed on the trial
testimony of Lt. Col. North. Admiral Poindexter' s
convictions on five counts by a jury were reversed
on appeal by the D.C. Circuit. I was not involved
either in the trial of Admiral Poindexter or in
the appeal.
The decision of the D.C. Circuit is reported at
951 F. 2d 369 (1991), cert, denied. 113 S. Ct. 656
(1992). The district court's opinion on the matters in
which I participated are reported at 727 F. Supp 1488
(D.D.C. 1989).
Opposing Counsel: Richard W. Beclcler, Esq.,
Fulbright & Jaworslei, 801 Pennsylvania Ave., N.W.,
Washington D.C. 20004, (202) 662-0200.
10. United States v. Mohammad Z. Jafar. Cr. No. 91-
123-A, April-June 1991, U.S. District Court for the
Eastern District of Virginia, before the Honorable
Claude Hilton, U.S. District Judge. 7/
I represented a 31-year-old Iraqi national
who was prosecuted by the government on two counts
alleging that he violated the embargo on trade
7/ Judge Hilton presided over the trial. The pre-trial motions
and other preliminary matters were handled by the then-chief
judge, Albert V. Bryan, Jr.
- 22 -
405
between the U.S. and Iraq following Iraq's
invasion of Kuwait on August 2, 1990. I began the
representation of Mr. Jafar within a week of his
indictment in April 1991. I was lead counsel for
all of the pre-trial proceedings and conducted all
aspects of the trial in court from opening
statement through summation. Judge Hilton
dismissed one of the charges for insufficient
evidence after the government had rested its case.
Mr. Jafar was acquitted by the jury on the
remaining count. Following the acqpiittal, at my
request, the government dismissed a charge against
Mr. Jafar *s father.
Opposing Counsel: Assistant U.S. Attorney Vincent
Gambale, U.S. Attorney's Office for the Eastern
District of Virginia, llOl King street. Suite 502,
Alexandria, Virginia 22314, (703) 706-3700.
17. Legal Activities: Describe the most significant legal
activities you have pursued, including significant
litigation which did not progress to trial or legal
matters that did not involve litigation. Describe the
nature of your participation in this question, please
omit any information protected by the attorney-client
privilege (unless the privilege has been waited.)
Over the last decade, I have had a series of jobs
that required not only legal experience but also the
ability to work with and supervise groups of lawyers
and investigators. The cases described in my responses
to question #16 — particularly items #1-4 and #7-10 —
required me to devise investigative strategies in
complex criminal investigations; direct and coordinate
investigations involving law enforcement personnel from
various federal, state, and local agencies; worlc
closely with prosecutors in other districts; and
supervise the preparation of complex cases for trial.
For example, the cases described at #7 and #8 in
question # 16 above were the result of approximately a
year of thorough investigation in conjunction with
agents from the New York and Washington field offices
of the Drug Enforcement Administration (DEA) and
lawyers from the U.S. Attorney's Office for the
District of Columbia. The case involved 1) frequent
consultation among the various agencies involved in the
- 23 -
406
investigation; 2) the drafting and submission of
lengthy wiretap applications based on law enforcement
intelligence information and pviblicly available
materials; 3) the monitoring and analysis of wiretaps
placed on multiple phones used by people involved in
narcotics trafficking and other organized criminal
activity; 4) the acquisition and comprehensive review
of tape recordings made at FCI Lewisburg of phone calls
placed by inmates; 5) the coordination and supervision
of large-scale undercover purchases of narcotics;
6) the supervision of other lawyers and a tezm of
agents in the execution of multiple search warrants
made at the time the investigation was terminated; and
7) the supervision of a trial team of three prosecutors
and approximately a dozen OEA agents in preparing a
month-long case for trial.
In addition to these activities, I actively
supervised a group of 2 0-25 lawyers as Deputy Chief and
briefly as Chief of the Narcotics Unit in the Southern
District of New York. These supervisory
responsibilities involved frequent contacts with DEA
supervisors and agents, members of the New York Drug
Enforcement Task Force, members of the New York-New
Jersey Organized Crime Drug Enforcement Task Force,
lawyers in the Office of the New York Special Narcotics
Prosecutor, and day-to-day supervision and management
of the lawyers in the Narcotics Unit.
While working in the Office of the Independent
Counsel, I was responsible for coordinating the
logistics of the grand jury investigation and serving
as liaison to the 1987-88 grand jury and later to Judge
Gesell. Beginning in the fall of 1987, I was assigned
responsibility to head the investigative team examining
the activities of the Department of state, the CIA, and
the "private benefactors" assisting the Contras in
Nicaragua. These responsibilities involved the
supervision of 7-8 lawyers and approximately a dozen
FBI and IRS agents.
In private practice, I worked with court officials
to establish and supervise a program enabling lawyers
in my firm to take on criminal cases in D.C. Superior
Court for indigent defendants on a pro bono basis. In
addition, one of the substantial criminal matters on
which I worked required me to devise an investigative
strategy and coordinate an 18-month long investigation
designed to uncover evidence that would support a
motion for a new trial.
24
407
II. FINAMCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated
receipts from deferred income arrangements, stock
options, uncompleted contracts and other future benefits
which you expect to derive from previous business
relationships, professional services, firm memberships,
former employers, clients, or customers. Please
describe the arrangements you have made to be
compensated in the future for any financial or business
interest.
On December 1, 1993, I left the law firm of Mayer,
Brown & Piatt to begin working at the Department of
Justice. I will receive all monies owed, including my
capital account, which will be paid to me in a lump
sum. The payments will be based on my portion of the
firm's income for services provided to clients from
January 1993 through November 30, 1993. I will receive
no income based on any of the firm's services rendered
to clients after November 30.
I will retain my investments in my independently
managed 401 (k) plan. Because I did not spend five
years with the firm, my investments in the firm's
mandatory savings plan have not vested and will be
returned to me when I resign from the firm, along with
the other monies described above. My investment share
in the plan is reflected in the interests reported on
pages 10 and 11 of the report submitted in response to
question #4 below.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the
categories of litigation and financial arrangements that
are likely to present potential conf licts-of-interest
during your initial service in the position to which you
have been nominated.
I will seek and follow the advice of the
appropriate ethics officials of the Department of
Justice before participating in any matter in which I
or any member of my family may have a personal or
financial interest.
I do not foresee any categories of litigation or
any of my family's financial arrangements that are
- 25 -
408
likely to present conflicts of interest. With respect
to specific conflicts that may arise in the course of
fulfilling my duties, I will consult with the ethics
advisors at the Department of Justice.
3. Do you have any plans, commitments, or agreements to
pursue outside employment, with or without compensation,
during your service in the position to which you have
been nominated? If so, explain.
Mo.
4. List sources and amounts of all income received during
the calendar year preceding your nomination and for the
current calendar year, including all salaries, fees,
dividends, interest, gifts, rents, royalties, patents
honoraria, and other items exceeding $ 500 or more. (If
you prefer to do so, copies of the financial disclosure,
required by the Ethics in Government Act of 1978, may be
substituted here.)
Please see the attached copy of my Public
Financial Disclosure Report, 8F-278.
5. Please complete the attached financial net worth
statement in detail (Add schedules as called for) .
See net worth statement and related schedules
attached at the end of this questionnaire. The
materials were updated to include all financial
transactions and related matters that took place
up through and including January 1, 1994.
6. Have you ever held a position or played a role in a
political campaign? If so, please identify the
particulars of the campaign, including the candidate,
dates of the campaign, your title and responsibilities.
In the fall of 1992 I attended several meetings of
a group of approximately a dozen lawyers supporting the
Clinton-Gore ticket to assist the campaign in
developing positions on law enforcement and criminal
justice matters, including community policing, boot
camps, and various other issues. I had no title and no
responsibilities other than attending periodic
meetings. I estimate that I spent approximately ten
hours on this activity.
- 26 -
409
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American
Bar Association's Code of Professional Responsibility
calls for "every lawyer, regardless of professional
prominence or professional workload to find some time to
participate in serving the disadvantaged." Describe
what you have done to fulfill these responsibilities,
listing specific instances and the amount of time
devoted to each.
During the approximately seven years that I have
practiced law in the private sector, I have devoted
substantial amounts of ny time to serving the
disadvantaged .
While I was at Foley t Lardner in the early
1980 's, I represented an indigent defendant on a pro
bono basis in the D.C. Court of Appeals. I spent
substantial time speaking by phone with my incarcerated
client, researching the various potential appellate
issues, drafting the opening and reply briefs,
consulting with partners in the firm who agreed to
supervise my work, and arguing the case in the D.C.
Court of Appeals. In addition to the work on this
case, I was called upon at various times to help out on
other pro bono projects in which the firm was involved.
After I returned to private practice in 1989, I
devoted a very substantial portion of my time to pro
bono matters. I was appointed by committees of judges
in the Onited States District Courts for the District
of Maryland and the District of Colximbia to panels of
lawyers deemed qualified to handle criminal cases
involving the representation of indigent defendants. I
took on matters on a pro bono basis in both courts. In
addition, federal judges in the District of Columbia
from time to time called on me to represent individual
defendants in special circumstances, and the Federal
Piiblic Defender's Office requested that I represent
witnesses in grand jury investigations. Although these
assignments were for the most part in criminal cases, I
accepted court appointments in civil cases as well. In
addition, I established the program — mentioned in my
response to question #17 above -- in D.C. Superior
Court that enabled lawyers in my firm to represent
indigent defendants in criminal cases on a pro bono
basis.
Altogether, my time records for the four years I
spent at Mayer, Brown ( Piatt reflect that I spent a
- 27 -
410
total of approximately 800 hours on pro bono matters.
This figure does not include the time spent to arrange
for various associates in my firm to undertake pro bono
projects and my active supervision of those projects.
I describe below specific pro bono matters that X
undertook on behalf of indigent clients that took
substantial amounts of my time.
A. In 1990, I was appointed by the U.S. District
Court in D.C. to represent an indigent defendant
charged with possessing with intent to distribute
a small quantity of crack cocaine. Ultimately, my
client entered a conditional guilty plea,
reserving the right to appeal the District Court's
ruling on a suppression issue. I handled all
court proceedings in the District Court and
supervised an associate's handling of the appeal
in the D.C. Circuit. The D.C. Circuit's decision
affirming the District Court's denial of the
suppression is reported as United States v. Ramos.
960 F. 2d 1065 (D.C. Cir. 1992). Personal time
spent: 165 hours.
B. From December 1990 through April 1992, on
appointment from the U.S. District Court in D.C,
I represented a Federal Protective Service police
officer who had been sued in a personal injury
action arising out of serious injuries suffered by
the plaintiff in a high-speed chase.
The government originally agreed to represent
the officer but subsequently took the position
that his involvement in the chase was not within
the scope of his employment. We persuaded the
Court to certify that, contrary to the
government's position, our client had at all times
acted within the scope of his employment.
Accordingly, the government was substituted as the
defendant and our client was dismissed from the
case. We began the representation on a pro bono
basis. The Court on more than one occasion
requested that we file a fee petition and
subsequently ruled that we were entitled to
certain fees and costs. The case, Mebane v.
Turner, is reported at 789 F. Supp. 410 (D.D.C.
1992). The issue of attorneys' fees and costs is
currently pending in the D.C. Circuit. Personal
time spent: 2 05 hours.
- 28 -
411
C. In 1993, in an executive branch agency other
than the Department of Justice, I represented a
criminal investigator charged with serious
violations of departmental rules and threatened
with the loss of her job. After supervising an
extensive investigation into the factual basis for
the threatened dismissal, ve reached a settlement
permitting my client to voluntarily resign from
the agency. Personal time spent: 108 hours.
Do you currently belong, or have you belonged, to any
organization which discriminates on the basis of race,
sex, or religion — through either formal membership
requirements or the practical implementation of
membership policies? If so, list, with dates of
membership. What have you done to try to change these
policies?
No.
- 29
412
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429
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all assets (including ban:
accounts, real estate, securities, trusts, investments, and other financial holdings) all liabilities (including debts
mortgages, loans, and other financial obligations) of yourself, your spouse, and other immediate members o
your household.
ASSETS
UABIUTIES
Ca<h on hind and In banks *1
fi7.170
-lA
—
Notat payabia to banks — aacurwj iQ/
Nota* payabia to banks— URsacurvd
Notat payabia to ratattva*
Nota* payabia to othan
Accounts and bills dua Cexcludine
items. o;i current billing cicT.e
Raal astata mortsaget payabia — add
aehadula (schedule H)
Chattel mortjagei and othar Hans
paytbia
Othar dabts — Itamlze:
0
on
._
U.S. Covammant iacafrtJa»— add ,
•chadula ''
10,187
50
..
0
00
~
Uatad aacuritiat — add tchadula *3
Unllrtad »acur1tia« — add ichadula
339,315
20
00
—
0
00
—
0
0
00
00
—
0
Accouna and notn racarmbla:
Oua from ralatiws and friandt
0
OC
0
00
—
Dua Irom oChara
Doubtful
0
0
00
00
—
JL
240,810
,1111
98
Raal aetata ownad — add achadula *i,
■(7? 7q-(
nn
0
00
Rail rtuta mortsigai racaivabla
0
00
—
Autot and othar panonal proparty *^
37,075
00
—
0
00
~
0
on
-^
Retirement Accounts *6
122,532
80
_.
Capital Account *7
53,50(
00
__
-
ToUl liabiUUas
Nat worth
240.810
783,982
98
87
85
1,024.793
85 —
— —
Toul aiMts
Total liablllUes and n«t «>orth
1,024,793
—
CONTINGENT UABILmCS
GENERAL INFORMATION
Ai tncorur, comakar or (uanntor
0
00
—
A/a any assati pladgaiQ (Add aehad-
ula.)
Art you dafendant In any tuKs or
iagal actions;
No
On laasai or eontncts
0
00
—
l.a(al Claims
0
w
—
No
^Tv^io', fer rtrtanl trsr—Tit T—
0
nn
Otnar tpacial dabt t
0
00
—
Hav* you avwr tskan baniuuptcyr
No
«
-
*1
See
Schedule
A
*2
See
Schedule
B
*3
See
Schedule
C
*4
See
Schedule
D
*5
See
Schedule
E
*6
See
Schedule
F
*7
See
Schedule
G
10/ See Schedule H, footnote 4.
430
^
OWKERSHIP
JT
DRB
JEB
KAB
FBF
DRB
JEB
KAB
NRB
FBF
FBF
SCHEDULE A
CASH ON HAND AND IN BANKS
ACCT./FDND
Kemper Money Market Fund
Kemper Money Market Fund
Kemper Money Market Fund
Kemper Money Market Fund
Paine Webber Money Fund
Paine Webber Money Fund
Paine Webber Money Fund
Paine Webber Money Fund
Riggs National Bank Checking Acct.
Riggs National Bank Checking Acct.
Riggs National Bank Savings Acct.
MARKET VALtJE
$
23,850.00
$
7,291.00
$
7,291.00
$
301.00
$
33,505.30
s
3,278.00
$
3,185.00
$
5,469.44
$
2,000.00
$
500.00
$
700.00
TOTAL:
$ 87,370.74
MRB = Michael R. Bromwich
FBF = Felice B. Friedman (wife)
JT = Jointly held by Michael R. Bromwich" and Felice B. Friedman
DRB = Held in Trust for Daniel R. Bromwich, Age 7
JEB = Held in Trust for Jonah E. Bromwich, Age 4
KAB = Held in Trust for Kira Anne Bromwich, Age 10 months
I
431
SCHEDOLE B
U.S. GOVERNMENT SECURITIES
WNERSHIP SECURITY MATURITY MARKET VALUE
BF 10,000 FFCB MTN 5/15/01 $ 10,187.50
Callable rate:
8.65%
TOTAL: $ 10,187.50
•?B = Michael R. Bromwich
3F = Felice B. Friedman (wife)
r = Jointly held by Michael R. Bromwich and Felice B. Friedman
RB = Held in Trust for Daniel R. Bromwich, Age 7
SB = Helc?, in Trust for Jonah E. Bromwich, Age 4
\B = Held in Trust for Kira Anne Bromwich, Age 10 months
432
SCHEDULE C
LISTED SECURITIES
OWNERSHIP
SECURITY
WO. /TYPE
MARKET VALUE
I. INDIVIDUAL EQUITIES
FBF
FBF
FBF
FBF
Avecmco Corp.
Amoco
Catellus Dev.
Corp.
500 Conumon
2 00 Common
Bellsouth Corp. 150 Common
2 00 Common
$ 9,437.50
$ 10,600.00
$ 8,700.00
S 1,550.00
FBF
Consol . Nat.
Gas Co.
200 Common
$ 9,400.00
DRB
Consol. Nat.
Gas Co.
100 Common
$ 4,700.00
JEB
Consol. Nat.
Gas Co.
100 Common
$ 4,700.00
FBF
FBF
Dow Chemical
Fed. Paper Bd.
2 00 Common
4 00 Conv. Pref,
2.875
$ 11,350.00
$ 19,800.00
FBF
General Motors 3 00 Common
S 16,462.50
<
433
SCHEDULE C (CONT'D.)
PAGE 2
OWNERSHIP
SECURITY
NO. /TYPE
MARKET VALUE
FBF
JEB
FBF
FBF
DRB
FBF
DRB
GTE Corp.
GTE Corp.
Nynex Corp.
Nynex Corp.
Pacif icorp.
RJR Nabisco
Hldgs. Corp.
200 Common
100 Common
NYS Elec.& Gas 78 Common
2 00 Common
2 00 Common
2 00 Common
200 Cum Pref.
$ 7,000.00
$ 3,500.00
$ 2,369.25
$ 8,025.00
$ 8,025,00
$ 3,850.00
$ 5,000.00
JEB
RJR Nabisco
Hldgs. Corp.
100 Cum. Pref.
$ 2,500.00
FBF
Santa Fe Pacific 300 Common
Corp.
$ 6,675.00
FBF
Santa Fe Energy 100 Common
Res. Inc.
925.00
FBF
JEB
Schlumberger
Ltd.
Schlumberger
Ltd.
2 00 Common
2 00 Common
$ 11,825.00
$ 11,825.00
434
SCHEDDLE C (CONT'D.)
PAGE 3
OWNERSHIP
SECURITY
NO. /TYPE
MARKET VALUE
FBF
Sierra Pacific
Resources
100 Common
S 2,050.00
JEB
Signet Banking
Corp.
100 Common
$ 3,475.00
FBF
FBF
FBF
Telef. de Mex.
Texaco Inc.
200 Common
100 Common
Time Warner Inc. 320 Common
$ 13,500.00
$ 6,475.00
$ 14,160.00
SUBTOTAL:
$ 207,879.25
MRB = Michael R. Bromwich
FBF = Felice B. Friedman (wife)
JT = Jointly held by Michael R. Bromwich and Felice B. Friedman
DRB = Held in Trust for Daniel R. Bromwich, Age 7
JEB = Held in Trust for Jonah E. Bromwich, Age 4
KAB = Held in Trust for Kira Anne Bromwich, Age 10 months
J
t 435
SCHEDDLE C (CONT'D.) PAGE 4
II. MUNICIPAL BONDS k NOTES
OWNERSHIP SECroiTY MATDRITY
FBF
JEB
KAB
MARKET VALUE
FBF Arizona Cert. 3/1/03 $ 22,196.60
of Partic.
^^^ N.Y. State Hlth. 11/4/04 $ 5,741.00
Wash. D.C. G.O. 6/1/09 $ 10,336.50
DRB N.Y. St. Urb. 1/1/05 $ 15,366.00
Corp.
DRB Ford Capital 5/1/98 $ n, 362. 50
BV Notes
NY State Dorm. 5/15/05 $ 16,345.80
Univ. Ed.
Time Warner Inc. 4/1/17 $ 21,050.00
SOBTOTAL: § 102,398.40
MRB = Michael R. Bromwich
FBF = Felice B. Friedman (wife)
DRB - it\T]l S^^^*'^ Michael R. Bromwich and Felice B. Friedman
DRB - Held in Trust for Daniel R. Bromwich, Age 7
JEB - Held in Trust for Jonah E. Bromwich, Age 4
KAB - Held in Trust for Kira Anne Bromwich, Age 10 months
436
SCHEDULE C (CONT'D.)
PAGE S
III. UNIT INVESTMENT TRUSTS
OWNERSHIP
SECURITY
UNITS
MARKET VALUE
FBF
Unit Tax Ex.
Sec. Tr.
10
$ 3,980.30
SUBTOTAL:
$ 3,980.30
MRB
FBF
JT
ORB
JEB
KAB
Michael R. Bromwich
Felice B. Friedman (wife) „ ,
Jointly held by Michael R. Bromwich and Felice B. Friedman
Held in Trust for Daniel R. Bromwich, Age 7
Held in Trust for Jonah E. Bromwich, Age 4 ,
Held in Trust for Kira Anne Bromwich, Age 10 months
437
SCHEDULE C (CONT'D.)
PAGE 6
IV. MOTDAL FUNDS
OWNERSHIP
FBF
FUND
Fidelity
SHARES
794.901
MARKET VAT.IIB
$ 9,880.62
MRB
20th Cent.
Ultra
69.814
$ 1,466.79
MRB
20th Cent.
Select
32.729
$ 1,286.58
MRB
2 0th Cent.
Vista
147.863
$ 1,475.67
MRB
Value Line
Fund
$ 1,474.91
ORB
20th Cent,
Growth
108.573
$ 2,426.61
DRB
20th Cent.
Select
87.317
$ 3,432.43
DRB
20th Cent.
Vista
362.088
SUBTOTAL :
LISTED SECURITIES TOTAL!
$ 3,613.64
$ 25,057.25
$ 339.315.20
MRB
FBF
JT
DRB
JEB
KAB
Michael R. Bromwich
Felice B. Friedman (wife)
Jointly held by Michael R. Bromwich and Felice B. Friedman
Held in Trust for Daniel R. Bromwich, Age 7
Held in Trust for Jonah E. Bromwich, Age 4
Held in Trust for Kira Anne Bromwich, Age 10 months
438
SCHEDULE D
REAL ESTATE OWNED
OWMERSHIP LOCATION ASSESSED VALUE
JT 3806 Military Road, N.W. S 372,793.00
Washington D.C,
(Personal Residence)
TOTAL: S 372,793.00
MRB = Michael R. Bromwich
FBF = Felice B. Friedman (wife)
JT = Jointly held by Michael R. Bromwich and Felice B. Friedman
DRB = Held in Trust for Daniel R. Bromwich, Age 7
JEB = Held in Trust for Jonah E. Bromwich, Age 4
KAB = Held in Trust for Kira Anne Bromwich, Age 10 months
439
SCHEDULE E
AUTOS AND OTHER PERSONAL PROPERTY
OWNERSHIP PERSONAL PROPERTY BOOK OR MARKET VALUE
JT 1981 Honda Civic GL $ 1,100.00
JT 1990 Honda Accord S 10,975.00
JT Furniture, Appliances, Books, Other $ 11,000.00
Household Contents
FBF Fine Arts, Silverware, China, $ 14,000.00
Crystal, Jewelry, etc.
SUBTOTAL: $ 37,075.00
MRS = Michael R. Bromwich
FBF = Felice B. Friedman (wife)
JT = Jointly held by Michael R. Bromwich and Felice B. Friedman
DRB = Held in Trust for Daniel R. Bromwich, Age 7
JEB = Held in Trust for Jonah E. Bromwich, Age 4
KAB = Held in Trust for Kira Anne Bromwich, Age 10 months
440
SCHEDULE F
OWMERSHIP
RETIREMENT ACCOUNTS
RETIREMENT INSTRUMENT/VEHICLE
MARKET VALUE
FBF
FBF
Paine Webber Retirement Money Fund
Paine Webber IRA:
Nynex Corp.: 100 shares
$ 174.79
$ 4,012.50
FBF
Paine Webber IRA:
Upjohn Co.: 100 shares
$ 2,900.00
FBF
Paine Webber IRA:
Global Health Sciences: 100 shares
$ 1,087.50
FBF
Paine Webber IRA:
Signet Bank: 100 shares
$ 3,475.00
FBF
FBF
FBF
FBF
MRB
401(k): U.S. Trust Short-Term Fund
401 (k): Fidelity Puritan Fund
401(k): Fidelity Magellan Fund
401 (k): Fidelity Overseas Fund
20th Century IRA
U.S. Govt. Securities
$ 8,045.08
$ 7,487.90
$ 9,644.22
$ 4,204.36
$ 9,872.38
MRB = Michael R. Bromwich
FBF = Felice B. Friedman (wife)
JT = Jointly held by Michael R. Bromwich and Felice B. Friedman
DRB = Held in Trust for Daniel R. Bromwich, Age 7
JEB = Held in Trust for Jonah E. Bromwich, Age 4
KAB = Held in Trust for Kira Anne Bromwich, Age 10 months
441
SCHEDDLE 7 (CONT'D.) PAGE 2
OWWER8HIP RETIREMEMT IH8TROMEMT/VEHICLE MARKET VALDE
MRB Mayer, Brown & PlattH/ $ 42,484.9512/
Savings Plan
MRB 401(k): Kidder, Peabody Funds $ 31,163.73
SUBTOTAL: $ 124,552.41
MRB = Michael R. Bromwich
FBF = Felice B. Friedman (wife)
JT = Jointly held by Michael R. Bromwich and Felice B. Friedman
DRB = Held in Trust for Daniel R. Bromwich, Age 7
JEB = Held in Trust for Jonah E. Bromwich, Age 4
KAB = Held in Trust for Kira Anne Bromwich, Age 10 months
11/ This savings plan is mandatory for all Mayer, Brown &
Piatt partners and is separate from the discretionary 4 01 (k) plan
listed below. For both the savings plan and the 401 (k) plan,
each partner has the choice of four investment plans, all of
which are managed by Kidder, Peabody: 1) a money market fund; 2)
an aggressive equity fund; 3) a conservative equity fund; and 4)
a balanced fund. For approximately the last six months, I have
divided both the mandatory savings and 401 (k) portions of my
retirement plan as follows: 10% money market fund; 30% aggressive
equity fund; 30% conservative equity fund; and 30% balanced fund.
To my knowledge, I have never received a Kidder, Peabody
statement for either account that itemizes the individual
securities holdings of any of the four funds.
12/ Because I was a member of the Mayer, Brown partnership
on November 30, 1993, I was subject to the mandatory features of
the firm's savings plan as well as eligible to make a voluntary
contribution to my 401 (k) account. In order for the amounts
contributed to the mandatory portion of the firm's savings plan
to vest, I would need to have been with the firm as a partner for
five years. Since I will resign from the firm after slightly
more than four years as a partner, I will receive back as a
"forfeiture" the amounts I contributed to the savings plan.
These amounts will be taxable to me as ordinary income in 1994.
442
SCHEDOLE 6
CAPITAL BALANCE — MAYER, BRORM t PLATT
Permanent Capital Balance with firm $ 100,944.00
(January 1, 1993 requirement)
Loan balance due to The Northern Trust Company 13./ ($ 47,444.00)
MET CAPITAL BALAMCE: $ 53,500.00
11/ Approximately two years ago, Mayer, Brown & Piatt
required all partners who had not yet fulfilled their capital
contribution requirements to do so within a few months. As an
accommodation, the firm established a loan program with The
Northern Trust Company to extend loans to all partners who
required financial assistance to satisfy the balance of their
capital contributions. Mayer, Brown & Piatt has reimbursed its
partners for the interest incurred in obtaining such loans.
I
443
SCHEDDLE H
REAL ESTATE MORTGAGES PAYABLE
OBMERSHIP LOCATION OF PROPERTY PRINCIPAL BALAKCE
JT 3806 Military Road, N.W. $ 240,810.98
Washington D.C. (residence) (as of 1/1/94)
Mortgage holder:
Citicorp Mortgage, Inc.
P.O. Box 790001
St. Louis, Missouri 63179
Loan i 0002347705
SUBTOTAL : $ 240,810.98
444
LETTERS IN SUPPORT OF MICHAEL R. BROMWICH
CONTENTS
1. LAW ENFORCEMENT: UNITED STATES ATTORNEY'S OFFICE FOR THE
SOUTHERN DISTRICT OF NEW YORK
A. RUDOLPH W. GIULIANI
• United States Attorney for the
Southern District of New York (1983-89)
• Associate Attorney General
United States Department of Justice (1981-83)
• Mayor
New York City, New York
STUART E. ABRAMS
• Chief, Major Crimes Unit (1986-88)
Chief, Appeals Unit (1985-86)
Assistant United States Attorney for the
Southern District of New York (1982-89)
• Law Offices of Stuart E. Abrams
New York, New York
C. BRUCE A. BAIRD
• Chief, Securities and Commodities Fraud Unit
(1987-89)
Deputy Chief, Criminal Division (1986-87)
Assistant United States Attorney for the
Southern District of New York (1980-89)
• Special Assistant to Deputy Attorney General
Harold Tyler (1975-76)
• Partner
Covington & Burling
Washington, D.C.
* This letter was not included in the packet of letters sent to
the Judiciary Committee on February 25, 1994
445
CHARLES M. CARBERRY
• Chief, Securities and Commodities
Fraud Onit (1986-87)
Deputy Chief, Criminal Division (1985-86)
Assistant United States Attorney for the
Southern District of New York (1979-87)
• Partner
Jones, Day, Reavis t Pogue
Kew York, New York
JOHN K. CARROLL
• Chief, Securities and Commodities Fraud
Task Force (1991-92)
Co-lead Counsel: U.S. v. Drexel Burnham
Lambert; U.S. v. Michael R. Milken
Assistant United States Attorney for the
Southern District of New York (1983-92)
• Partner
Rogers t Wells
New York, New York
F. ALAN M. COHEN
• Chief, Securities and Commodities Fraud
Task Force (1989-91)
Chief, Organized Crime Unit (1989)
Assistant United States Attorney for the
Southern District of New York (1982-91)
• Partner
O'Melveny & Myers
New York, New York
6. DENISE L. COTE
• Chief, Criminal Division (1991-94)
Deputy Chief, Criminal Division (1984-85)
Assistant United States Attorney for the
Southern District of New York (1977-85,
1991-'94)
* This letter was not included in the packet of letters sent to
the Judiciary Committee on February 25, 1994
446
H. RHEA KEMBLE DIGNAM
Chief, Public Corruption Unit
Chief, Narcotics Unit (1981-86)
Assistant United states Attorney for the
Southern District of New York (1976-88)
Deputy General Counsel — Litigation
New yor)c Life Insurance Company
New York, New York
I. JESS T. FARDELLA
Chief, Special Narcotics Unit (1991-92)
Co-lead Counsel: U.S. v. Drexel Burnham
Lambert; U.S. v. Michael R. Milken
Assistant United States Attorney for the
Southern District of New York (1983-92)
Partner
Brobeck, Hale & Dorr, International
New York, New York
J. MARIA T. GALENO
Assistant United States Attorney for the
Southern District of New York (1985-90)
Partner
Christy & Veiner
New York, New York
* K. HELEN GREDD
• First Deputy Chief, Criminal Division
(1992-93)
Chief Appellate Attorney (1991)
Assistant United States Attorney for the
Southern District of New York (1985-93)
• Partner
Lanklert, Siffert & Wohl
New York, New York
* This letter was not included in the packet of letters sent to
the Judiciary Committee on February 25, 1994
447
L. HOWARD E. HEISS
Chief, Securities and Commodities Fraud
Task Force (1992-present)
Chief, Organized Crime Unit (1989-92)
Deputy Chief, Criminal Division (1988-89)
Chief, General Crimes Unit (1987-88)
Assistant United States Attorney for the
Southern District of New York (1983-present)
M. MAKK HELLERER
Chief, Major Crimes Unit (1989-92)
Assistant United States Attorney for the
Southern District of New York (1983-92)
Counsel
Winthrop & Stimson
New York, New York
N. ANNMARIE LEVINS
Chief, Special Narcotics Unit (1992)
Assistant United States Attorney for the
Southern District of New York (1985-92)
Assistant Professor of Law
University of Washington School of Law
O. EDWARD J.M. LITTLE
Deputy Chief, Criminal Division (1988-89)
Assistant United States Attorney for the
Southern District of New York (1982-89)
Partner
Zuckerman, Spaeder, Goldstein, Taylor & Kolker
New York, New York
* This letter was not included in the packet of letters sent to
the Judiciary Committee on February 25, 1994
448
p. ROANNE L. MANN
Deputy Chief, Criminal Division (1986)
Chief, Appeals Unit (1983-84)
Assistant United States Attorney for the
Southern District of New York (1978-86)
Partner
Stein, Zauderer, Ellenhorn, Frischer & Sharp
New York, New York
AARON R. MARCU
• Associate U.S. Attorney (1989)
Chief, Major Crimes Unit (1988-89)
Chief, Appeals Unit (1984-85)
Assistant United States Attorney for the
Southern District of New York (1983-89)
• Partner
Howard, Darby & Levin
New York, New York
R. SHIRAH NIEMAN
• Deputy United States Attorney (1993-present)
Senior Litigation Counsel
Chief, Major Crimes Unit
Assistant United States Attorney for the
Southern District of New York (1970-93)
• Associate Counsel
Watergate Special Prosecution Force (1973-74)
(on detail from the Southern District of New
York)
S. BENITO ROMANO
• United States Attorney for the
Southern District of New York (1989)
• Associate U.S. Attorney (1987)
* This letter was not included in the packet of letters sent to
the Judiciary Committee on February 25, 1994
449
Chief, Public Corruption Unit (1985-87)
Chief, Appellate Onit (1984-85)
Assistant United states Attorney for the
Southern District of New York (1980-87)
Partner
Wilkie, Parr fi Gallagher
New Yor)c, New York
PETER ROMATOWSKI
Chief, Securities and Commodities Fraud Unit
(1984-86)
Assistant United States Attorney for the
Southern District of New York (1979-86)
Partner
Crowe 11 & Moring
Washington, D.C.
BART M. SCHWARTZ
• Chief, Criminal Division
Assistant United States Attorney for the
Southern District of New York (1984-85)
* Chairman
Decision Strategies, Inc.
New York, New York
V. LINDA C. SEVERIN
• Assistant United States Attorney for the
Southern District of New York (1984-92)
• Bogle s Gates
Seattle, Washington
«."iiic'ra\\"c:™\t\v,rvruAr". \%fr °' ^-"-^ -" '°
450
W. PAUL L. SHECHTMAN
• Chief, Criminal Division (1994-present)
Chief, Appeals Unit (1-984-8S)
Chief, General Crimes Unit (1985-86)
Assistant United States Attorney for the
Southern District of New York (1981-86,
1994-present)
• Coxxnsel to the District Attorney (1987-94)
Manhattan District Attorney's Office
Mew York, New York
2. IRAN-CONTRA COUNSEL
A. RICHARD W. BECKLER
• Fulbright t Jaworski
Washington, D.C.
• Counsel for Admiral John Poindexter
B. DAVID P. DOHERTY
• Senior Vice-President for Enforcement
New York Stock Exchange (1988-present)
• General Counsel
Central Intelligence Agency (1986-88)
C. EARL C. DUDLEY, JR.
• Professor of Law
University of Virginia School of Law
• Counsel for Richard R. Miller
* This letter was not included in the packet of letters sent to
the Judiciary Committee on February 25, 1994
451
8
D. LEONARD GARMENT
• Special Consultant, Assistant and Counsel to
President Nixon (1969-74)
• Partner
Mudge, Rose, Guthrie, Alexander & Ferdon
Washington D.C.
• Counsel for Robert C. McFarlane
E. THOMAS C. GREEN
I
I
• Sidley & Austin
Washington, D.C.
• Counsel for Richard Secord
F. M. RICHARD JANIS
• Janis, Schuelke and Wechsler
Washington, D.C.
• Counsel for Albert Hakim
3. FEDERAL JUDGES
A. HONORABLE ROBERT L. CARTER
• General Counsel (1956-68)
Counsel (1944-56)
NAACP
New York, New York
• United States District Judge for the
Southern District of New York (1972-present)
Appointed by President Nixon
* This letter was not included in the packet of letters sent to
the Judiciary Committee on February 25, 1994
452
B. HONORABLE MORRIS E. LASKER
• United States District Judge for the
Southern District of New York (1968-present)
Appointed by President Johnson
C. HONORABLE STANLEY J. SPORKIN
• Chief, Enforcement Division (1972-81)
Securities and Exchange Commission
• General Counsel (1981-85)
Central Intelligence Agency
Appointed by President Reagan
United States District Judge for the
District of Columbia (1985-present)
Appointed by President Reagan
OTHER FORMER GOVERNMENT OFFICIALS
KENNETH I. JUSTER
• Counsel to Acting Secretary of State
Lawrence Eagleburger (1992-93)
Counsel to Deputy Secretary of State
Eagleburger (1989-92)
Partner
Arnold & Porter
Washington, D.C.
B. TERRY F. LENZNER
• Assistant United States Attorney for the
Southern District of New York (1966-69)
* This letter was not included in the packet of letters sent to
the Judiciary Committee on February 25, 1994
453
10
Director, office of Legal Services, Office of
Economic Opportunity (1969-70)
Assistant Chief Counsel, Senate Select
Committee on Presidential Czunpaign Activities
(1973-74)
Chairman, The Investigative Group, Inc.
Washington, D.C.
C. HERBERT J. STERK
• United States Attorney for the
District of New Jersey (1970-74)
Appointed by President Nixon
• United States District Judge
District of New Jersey (1974-87)
Appointed by President Nixon
• Partner
Stern & Greenberg
Roseland, New Jersey
D. GEOFFREY S. STEWART
• Deputy Assistant Attorney General (1983)
Office of Legal Policy
U.S. Department of Justice
• Partner
Hale and Dorr
Washington, D.C.
E. DAN K. WEBB
• United States Attorney
Northern District of Illinois (1981-85)
Appointed by President Reagan
• Chairman, Litigation Department
Winston t Strawn
Chicago, Illinois
* This letter was not included in the packet of letters sent to
the Judiciary Committee on February 25, 1994
454
Rudolph W. Giuliani
March 10, 1994
To Whom It May Concern:
I write this letter of recommendation on behalf of Michael Bromwich, who I
understand has been nominated by President Clinton to be Inspector General of the
Department of Justice.
I have known Michael since 1983 when I became United States Attorney for the
Southern District of New York and Michael was serving as an Assistant United States
Attorney in that office. Having served as Associate Attorney General, I know how
important the Department's Inspector General can be to the operations of the Department.
Having worked closely with Michael, I know what a superb job he would do in that position.
Michael is a consummate professional: fair, objective and reasonable. He is
apolitical. Indeed, I could not tell you what his politics are because they were never made
evident in any of his actions in my office. I consider him to be a professional prosecutor of
impeccable reputation and the highest ethical standards.
Since I am not of the same political party as President Clinton, I hope that my
attesting to the professionalism and independence of Michael Bromwich will remove any
suggestion of partisanship which may have been raised in connection with this nomination.
I commend the President for making a selection of merit and I urge you to confirm
Michael's nomination. I know he will serve with distinction.
• Rudolph W. Giuliani
Mayor of New York City
455
Stuart E. abrams
ATTORNEY AT LAW
230 PARK AVENUE
OF COUNSEL NEW YORK, NY. 10169
SANDOR FRANKEL. P C
12121 661 -5000
TELEFAX (2 12)661 S007
February 10, 1994
To whom it may concern:
I am writing in reference to my good friend and colleague,
Mike Bromwich. Mike is a lawyer of the highest integrity and
ability, and I have no hesitancy whatsoever in urgina his
confirmation as Inspector General of the Department of Justice.
I first became acquainted with Mike when we were both serving
as Assistant United States Attorneys in the Southern District of
New York. Mike and I served together in the Narcotics Unit in the
United States Attorney's office, and my memories of Mike are of a
hard-working prosecutor who was universally admired and respected
by fellow prosecutors, the defense bar, and the Bench Mike
directed the prosecution of several difficult and complex
prosecutions, involving large-scale drug trafficking, money
laundering, and tax evasion. Since I also served as Chief
Appellate Attorney in the United States Attorney's office, I had
the opportunity to review some of the appeals from convictions that
Mike had secured, and it was clear that the cases were prosecuted
in a manner that evidenced both a zeal for justice and concern for
fairness .
Later during our tenures at the United States Attorney's
office, Mike served as Chief of the Narcotics Unit at the same time
that I served as Chief of the Major Crimes Unit. As such, Mike and
I were both members of the executive staff of United States
Attorney Rudolph Giuliani, and we attended many meetings together
at which policy decisions for the Office were discussed. Everyone
who attended those meetings looked to Mike as someone who had sound
judgment, who could be counted on to analyze issues on the merits,
without considerations of extraneous factors such as politics or
public relations.
When Mike left the United States Attorney's office to join the
Office of Independent Counsel, I felt confident that he would
conduct himself in the same even-handed, yet thorough and effective
manner, in which he had always acted as a prosecutor. My knowledge
of Mike's work at the Office of Independent Counsel confirms that
assessment. I briefly overlapped with Mike at the Office of
Independent Counsel, where I served as trial counsel in the
prosecution of Thomas Clines. In that respect, I have first-hand
knowledge of the kind of person Mike is.
456
While every lawyer likes to talk about his or her successes,
I think that perhaps the best illustration of Mike's character lies
in the actions he took after the cases of Oliver North and John
Poindexter were remanded by the D.C. Circuit. Mike is one of the
only lawyers I know who has the courage and integrity always to do
what the law requires, even if that means that a conviction will
not stand. Mike was willing to come to the forefront and represent
the Government when the tough decision had to be made not to pursue
the cases further. Mike had already started in private practice at
this time, and he did not have to take on the assignment. However,
Mike's dedication to pviblic service is such that he does not shirk
from doing what needs to be done, no matter how difficult or
politically unpopular it may be.
I am delighted that Mike is willing to leave private practice
and return to Government to take on the difficult and important
assignment of Inspector General. The country is well-served to
have the dedication and talent of this honorable attorney. Please
do not hesitate to contact me if you would like to discuss Mike
Bromwich any further.
SEA/aad
457
1201 PENNSYLVANIA AVENUE, N. W
P. O BOX 7S6e
WASHINGTON. IX C. 20O44
Febniary 23, 1994
TO KaOM XT MXr CONCXRKi.
I am writing vith reapect to the nomination of Michael
R. Bxxaawich to be Inspector General of the United States Depart-
ment of <Ju8tice. I memrod with Mr. Bromwich in the United States
Attorney's Office for the Southern District of New York during
the Reagan administration. He wae known to me as a fine, able
and balanced prosecutor and lanfyer, and I believe that thia was
his reputation generally in the Office. Be rose to become head
of the K2a-cotica Dtiit before he left. He was )cnown to me not
only as a lawyer of ability, but also one of high professional
ethics. Koreorer, I know of no instance in which political
considerations or any other considerations beyond those appro-
priate to law enforceinsnt entered into his decisionoaking.
When I served there, the Manhattan United States
Atton>ey'a Office had a wealth of capable lawyers and Kike
distinguished himself in that company. I believe he is excep-
tionally well'equii^>ed to oversee investigations of prosecutors
and other lawyers for alleged breaches of pzt^fessional ethics.
I should add that I am a registered Republicsm and have
served in the United States Department of Justice as Special
Assistant to the Deputy Attorney General under President Ford and
as an Assistant United States Attorney, Deputy Chief of the
Criminal Division, Chief of the Harcotlcs Unit, and Chief of the
Seourities and Commodities Frauds Unit in the Manhattan U.S. At-
torney's Office from 1980 to 1989 tinder Presidents Reagan and
Bush. There has been no shortage in this administration of
appointments made for political purposes rather than on the
nerits, but Mr. Brooiwich is a distinguished lawyer who %fould do a
distinguished job.
Bruce A. Bair(
458
Charles M. Carbekry
599 LEXINGTON AVENUE
NEW YORK. NEW YORK 1O022
February 24, 1994
TO WHOM IT MAY CONCERK:
This letter is written to state my knowledge of Michael
Bromwich's character and legal ability. Currently, I am a member
of the law firm of Jones, Day, Reavis & Pogue. For eight and a
half years I was a federal prosecutor in New York City, where I
was Deputy Chief of the Criminal Division and Chief of the
Southern District of New York's Securities Fraud Unit. I have
known Mr. Bromwich professionally for over ten years. We were
colleagues in the United States Attorney's Office and for some
period I had supervisory responsibilities with respect to him.
We have had some professional contact since he went into private
practice.
Throughout our acquaintance I have found him to be an
ethical, thoughtful and capable lawyer. As a prosecutor, I found
him fair, reasoned and responsible. His decisions were based on
the evidence collected and not on any extraneous considerations.
He tried his cases in court and not in the newspapers.
When he was a supervisor in the United States
Attorney's Office in Manhattan, Mr. Bromwich impressed me with
his diligence and leadership. His commitment to public service
is evident from his professional service. Throughout his career
he has displayed a maturity of judgment that has allowed him to
correctly balance his duties as a prosecutor with his
constitutional obligations to the accused.
Very truly yours,
CA
Charles M. Carberry
459
\OT rOUOTTCCMTM STUCCT, «.» ^ - ._ __.^„
rAcaiMitx Cue>ar»-«aTa
P«taruary 22, 1994
To Whooi It: ffay Concern}
I bava tMon Informed that Michael BroBvldi has been
proposed to lead the Inspector General's Officse at the United
Statea Department of Juatice. I write to strongly urge his
oonf iraation .
I have known Michael since September, 1983 when we were
both serving as junior Assistant United States Attorneys In the
Office of the united States Attorney for the Southern District of
Hew Torlc. Michael and I worked closely together there for
approrimately four years.
Midiael was then and is now one of the finest
prosecutors and lawyers I have ever known. He is enormously
industrious and unooquromising in his integrity. Daring Michael's
last year in the southern District of Mew Yozic, he supervised other
proseoitors. From my observation of his performance of that job,
I have complete confidence that he is veil equii^>ed to oversee
investigations of prosecutors and other lawyers. I am fully
confident that he will fairly and honestly perform his duties
without regard to any iaproper external influences. I have never
seen Michael distracted by external forces from the duties he has
sworn on oath to uphold.
In sun, I wholeheartedly recommend Michael to you. I
believe that the Department of Justice would benefit greatly by his
appointment.
Very truly yours.
3otm K. Carroll
460
riny-lourln lloor
Oiticorp Uenter
153 East 53rcl Streel
New Yorlc.N.Y. 10022 -46U
March 7, 1994
CONFIDENTIAL
TO WHOM IT MAY CONCERN
Re: Michael Bromwich. Esq.
Dear Sirs or Madam:
I am writing this letter in support of Michael Bromwich, Esq.,
who has been nominated by President Clinton to be the Inspector
General of the Department of Justice. I have known Michael
Bromwich for over ten years. Although I am now in private practice
with the law firm of O'Melveny & Myers, for nine of the last eleven
and a half years, I worked for the Department of Justice as an
Assistant United States Attorney for the Southern District of New
York, serving at various times as the Chief of the Organized Crime
Unit and as the Chief of the Securities and Commodities Frauds Task
Force. During that period, I worked with Mike Bromwich and came
to know him quite well.
Michael Bromwich stands out as one of the finest lawyers to
serve as an Assistant United States Attorney in the Southern District
of New York. In that job, he distinguished himself in investigations
and trials of numerous complex narcotics and other criminal cases.
Throughout his tenure in the United States Attorney's Office, Michael
Bromwich was known for his intellectual flair, his tenacity in pursuing
every aspect of a case and his grace under pressure. Not surprisingly,
these attributes earned him the respect and admiration of his
colleagues and the agents with whom he worked. He quickly became
the friend, confident, and trusted advisor to many prosecutors and
agents. Ever sensitive to the legal and ethical problems confronting a
prosecutor, Michael Bromwich was someone who was widely regarded
as having "good judgment," a phrase that is high praise among
461
March 7, 1994
Page 2
prosecutors. Even his adversaries shared the view that Michael
Bromwich is a superb lawyer who exercised his prosecutorial discretion
with a sense of fairness and intellectual honesty.
In sum, Michael Bromwich is one of those rare lawyers who
combines intellectual and ethical qualities necessary to perform this
most sensitive job. He will distinguish himself and the DeiJartment of
Justice in the role of Inspector General.
Very truly yours,
Alan M. Cohen
462
Denise Cote
315 Riverside Drive
New York, New York 10025
February 16, 1994
To Whom It May Concern:
I have known Michael Bromwich from 1983, the year he became an
Assistant United States Attorney for the Southern District of New
York, and write to support his confirmation as the Inspector
General for the Department of Justice. Michael is a person of
absolute integrity, enormous energy, and superb judgment. I
believe he will make an outstanding Inspector General.
Soon after Michael joined the United States Attorney's Office,
I supervised one of his first trials. It was immediately apparent
that Michael was going to be an exceptional Assistant. As I got to
know him better over the next few years, this view was confirmed.
He is intelligent, hard working, organized, analytical,
responsible, and ethical. He also uses extremely good judgment to
resolve difficult problems. And not least of all, he is a
thoroughly decent human being.
Since leaving the United States Attorney's Office in 1985, I
have stayed in touch with Michael . I know that he became one of
the most respected and well liked Assistants in an office of
extraordinarily talented lawyers. As the years passed, he handled
increasingly complex matters and was entrusted with great
responsibility.
It did not surprise me that Michael joined the Iran-
Contra investigation or that he aspires to be Inspector General
for the Justice Department. As was apparent from his days in the
United States Attorney's Office, Michael's first love as a lawyer
is public sei-vice. I believe that, as a nation, we are extremely
fortunate that a person as talented as Michael is wishes to serve
in the Government.
I realize that the position of Inspector General requires a
person of absolute independence and integrity. Michael is such a
person. All of his colleagues from over the years share the same
view of him. He is an honest, ethical, decent human being. He
I
463
always understood that the only obligation of a prosecutor is to
do justice — to do the right thing. I am confident that he would
bring the same high standards to bear on his job as an IG.
Very truly yours,
Denise Cote
(202) 514-5746
464
RHEA KEMBLE DIGNAM
61 East 86lh Street, Apt. 62
New York. New York 10028
(O) 212-576-6446
(H)212-34S^16
To Whom It May Concern:
February 14. 1994
I write in enthusiastic support of the nomination of Michael
Bromwich to be Ii\spector General of the Department of Justice. Having
been an Assistant United States Attorney in the Southern District of New
York for 12 years (from August 1976 to July 1988), I write as someone who
cares very much about the Department of Justice and who understands the
importance of the position of Insp>ector General. With that persp>ective,
and having known Michael Bromwich well for more than ten years, I give
him my highest recommendation for this position. I believe Michael's
service will meet the highest standards of fairness and justice and be
entirely non-partisan.
Michael Bromwich joined the United States Attorney's Office for
the Southern District of New York in May 1983 and was assigned to the
General Crimes Unit, which was the entry level unit in the Criminal
Division. Michael quickly distinguished himself as someone who
prepared his cases particularly carefully and thoroughly, wrote beautifully,
and had tremendous potential as a trial lawyer.
I was Chief of that Office's Narcotics Unit at the time, and Michael
was one of the new members of the Office whose skills came quickly to my
attention. I was therefore delighted when in approximately January 1984
Michael was promoted earlier than usual from the General Crimes Unit
and assigned to the Narcotics Unit.
In the Narcotics Unit, Michael oversaw a number of complex
investigatiorvs and trials. He was entirely reliable, and his word was always
good. For that reason, he was trusted not only by federal agents and police
officers, witnesses, his colleagues and federal judges, but also by defer^e
lawyers. He honored his commitments <ind dealt with people in an
entirely ethical fashion. He also continued to develop as an exceptionally
able investigator, trial lawyer and appellate advocate. Michael was also a
pleasure to work with. This was a view shared not only by the managers
in the office, but by his colleagues and the support staff.
For all of these reasorxs, in September 1985 I selected Michael to be
Deputy Chief of the Narcotics Unit In that capacity, he continued to
handle significant investigations, trials and appeals, and demonstrated a
flair for innovative prosecutions He also took on administrative
responsibilities and proved himself an able manager Even as his
465
Rhea Kemble Dignam
Febmaiy 14, 1994
Page 2
responsibilities grew and the demands on his time expanded, his
commitment to fairness and justice was unflagging.
When the time came after nearly five years as Chief of the Narcotics
Unit for me to assume new responsibilities as Chief of the Public
Corruption Urut, I strongly recommended Michael to succeed me as Chief
of Narcotics. From having worked closely with him on a daily basis for
nearly three years, I had complete corxfidence in his skills as a lawyer and
prosecutor, and in his decency and moral uprightness as a person. J was
delighted when he was chosen, in late December 1986, to be Chief of the
Narcotics Unit.
I am confident that Michael would serve as Inspector General of the
Department of Justice in an entirely non-partisan fashion. He was
appointed as an Assistant United States Attorney by United States
Attorney John S. Martin, Jr. (now a federal judge) who was appointed by a
Democratic President. Later, Michael also served under a Republican
United States Attorney, Rudolph W. Giuliani, now Mayor of New York
City. Michael served with distinction in both Administrations. 1 am a
Republican; 1 suspect Michael is a Democrat. The happenstance of our
political party affiliations has never affected either of us in how we
approach a case or the administration of justice
Wliile Michael and I have not worked together since 1987, we have
stayed in frequent contact with each other. I respect his judgment, and
have sought his opinion on matters affecting my own career
development. Our friendship has also continued. Michael has a fine sense
of humor, and is a warm, caring friend. My husband and I have been
guests in Michael's home when we visit Washington. From personal
observation, I can say that Michael is a devoted husband and father. He
clearly enjoys his family, and — just as clearly — they love and appreciate
him.
Please feel free to contact me if 1 can answer any questions about
Michael. I hope that his confirmation wUl occur quickly, as I am confident
Michael can make a significant contribution to the country. We are lucky
that a person of his talents and character has been nominated for this
important position.
Very truly yours,
Rhea Kemble Dignam
466
JESSFARDELLA
I30I Avenue of the Americas
New Yoric, New York lOOIS
an) 581-1600
February 11, 1994
Mayer Brown ( Piatt
2000 Pennsylvania Avenue
Suite C500
WaGhington, D.C. 20006
202-778-0620
202-861-0473 (by facsimile)
Attention: Mark Gitenstein, Esq.
To Whom It May Concern:
I write to voice my support for the nomination of Michael
Bronwich ae Inspector General for the United States Department of
Justice.
Mike is both a former colleague and a good friend. I iiava
known him cince 1983, when we both began serving as Assistant
United States Attorneys in the Southern District of New York. Wc
served together in that office — much of the time in the same
units — until Mike left the office in approximately 1987 to join
the Iran-Contra Special Prosccutor'c office. (1 left the U.S.
Attoimey's Office in 1992 to go into private practice).
I have the highest regard for Mike both as a lawyer and as a
person. He is a thoroughly decent individual, affable and open,
and is a wonderful father and husband. nc has been extremely
effective as both a prosecutor and a defense attorney, and he ic
an outstanding and intrepid trial lawyer. He possesses an
unsurpassed dedication to his work, incisive intelligence, the
highest ethical standards and on unswerving eenoc of fairness.
Indeed, it is hard to imagine a better 'candidate for
Inspector General. One of Kike's earliest successes as a
prosecutor and trial lawyer came in a cacc in which prison guards
at the Metropolitan Correctional Center here in Manhattan were
convicted on corruption charges. Mike's respect for maintaining
467
February 11. 1994
PlBCC 2
the integrity and crcdlljility of law enforcement ensures that th
tough but fair approach character ictlo of hie prior tenurrne I
prosecutor will equally exemplify his command of th« sensitive
taak of policin<j prosecutors and other governmental officials and
And I have no doubt that Mike will fulfill the Inspector
General's function without fear or favor, or political
considerations. Mike is first and foremost a lawyer and a
prosecutor. He is not -political- in any sense of the word - he
does not wear his political views on his sleeve, nor does he
subordinate his ethics and values to career advancement. He is
blunt and plain-spoken, no matter who the audience or who miaht
take offense. He has decided to return to government service
because he truly loves to serve and to see that the right thing
Accordingly, I ask that this letter be consldorod in
^nD^^""^ ^''^''*' deliberations on Mike Bromwich's nomination as
inspector General, and urge that he be swiftly confirmed in this
position. "»i^
Very truly yours,
Jess Fardella
468
RICHARD A. ANOCRMAN
ROeCRT S. APPCL
STEVEN R. BEHGER
JAHES S. BOYNTON
JOHN F. CAMBRIA
ANTHONY J. CARROLL
ARTHUR H. CHRISTY
L- OAVIO CLARK, JR.
RUSSELL J. OaSILVA
RICHARD H. ESTES
HARIA T. CALENO
WILLIAM r. GRAY, JR.
P. GREGORY HESS
L. ANTHONY JOSEPH, JR.
OAVID G. LEVERE
JEROME H. LCWINE
LAURENCE S. MARKOWIT2
JON J. MASTERS
WAYNE C. MATUS
RICHARD SALOMON
SALVATORC A. SANTORO
DANIEL J. SULLIVAN
KENNETH W. TABER
FRANKLIN B. VELIE
JOHN O. VIENER
KARON WALKER
Christy & Viener
620 FIFTH AVENUE
NEW YORK, NEW YORK «0020-2402
(212) 632-S500
fACSIMILC
>212> eiI-S5SS
OIRCCT DIAL NUMBCIi
tZlZt e32-
5581
February 23, 1994
To Whom It May Concern:
I write regarding Michael R. Bromwich, who I
understand is being considered for the position of the Justice
Department's Inspector General. Having worked with Michael in
the United States Attorney's Office for the Southern District
of New York and come to value him as a friend, I wish to
provide my unqualified endorsement of him.
I have known Michael since approximately 1985, and
served under him while he was Deputy Chief of the Narcotics
Unit. I observed Michael to be a highly capable, careful and
meticulous lawyer. He always provided thoughtful and
insightful advice to unit members who sought his counsel. I
would be hard pressed to think of another attorney in the
office who was better organized or more adept at managing
large cases.
I also observed Michael to be a talented trial
lavfyer. I had the pleasure of watching Michael deliver an
opening statement to the jury in one of his cases. I was so
impressed with his style, that I incorporated some of his
techniques into opening statements which I later delivered.
I know Michael to be a decent human being of the
highest integrity. He is someone who can be trusted with the
most delicate and sensitive matters. Indeed, Michael
satisfies the highest professional and ethical standards of
the practice of law.
469
IRISTY & ViENER
Page 2
February 23, 1994
I hope the foregoing is useful and would be happy to
provide further information if called upon to do so.
Very truly yours.
^ji^C^e^
Maria T. Galeno
101U2S6
470
mclcn cncoo
«OOCntC« C. lamklCR
STACCv J. MoniTZ
^OHN s. sirrc«T
SUSAM L. SOMMCR
FRANK M. WOML
LaNKLER SiFFERT & WOHL
ATTORNEYS AT LAW
33«o Floor
500 FirxM Avenue
New York. N. Y. 10110-3393
TCLCPMOMC <2I2» ©2t-e39S
TCLCrAX 42l2t 76^0701
■4A J OLSON
r COuMSCl,
RICHARO f ALBCRT
KARL D COORCR
DAVID C. CSSCKS
KAThRVN J. JANMO^VSK)
OAViD S. JOmcS
sharon l. mccarthy
Patricia mcOOmagh
ChaRlCS T. SRADA
RICHARD H. STRASSaCRC
MARCARCT I. WATSON
March 28, 1994
To Whom It May Concern :
I am writing in support of the nomination of Michael
Bromwich as Inspector General of the United States Department of
Justice.
I first met Mr. Bromwich not long after I was sworn in as
an Assistant United States Attorney in the Southern District of New
voT-V in December 1985. Mr. Bromwich was among the senior
D?osecutors to whom I was referred for advice and guidance in
fu^ftlUng-'y duties as a prosecutor. Like those who suggested I
consilt with^him, I consistently found Mr. Bromwich's counsel wise
and his ethical standards above reproach.
I regard Mr. Bromwich to be a superb choice as Inspector
General and urge his speedy confirmation.
truly yours.
471
HOWARD E. HEISS
27 Barnes Road
Ossining, New York 10562
February 18, 1994
To v?hon It May Concern:
I am writing in behalf of Michael Bromwich's nomination
for the position of Inspector General in the Department of Justice.
I have been employed as an Assistant United States Attorney in the
Southern District of New York since January 1984. I met Mr.
Bromwich when I joined the United States Attorney's Office and
worked with him on a major narcotics prosecution, which we tried
together in 1986. I worked closely with Kr. Bromwich on that case
for more than six months. Based on that experience, I can say that
Mr. Bromwich is an exceptional lawyer and person. I think he will
imake a superb Inspector General.
Mr. Bromwich is cm outstanding lawyer. As an Assistant
United States Attorney, he combined a powerful intellect and
i formidable analytic skills with common sense. Mr. Bromwich excels
: in all areas of practice: his written work is brilliant, he is an
extraordinarily talented courtroom advocate, and a determined and
creative investigator.
I Mr. Bromwich is particularly suited to be the
Department's Inspector General. His tenacity as an investigator is
accompanied by his consistent exercise of sound judgment and a
sense of fairness. His honesty and integrity are beyond reproach.
In carrying out the sensitive responsibilities of Inspector
Seneral, Mr. Bromwich will command the confidence of both the
Department and the public, which will have in Mr. Bromwich an
tnspector General whose decisions will be respected as well-founded
ind fair.
Very truly yours,
Howard E. Heiss
472
1(33 COMHCCTICOT A*/CNUCN.W.
WASHtMCTOM. OC 20036
TclC^hOmC: 202-77596O0
TCLCrAK:202-a33e49l
695 East Maim Stocct
STAMrono.CT 06904-6760
TciX^MOMC: 203-348-2300
TciXrA.x: 203-965-8226
125 WonrM Avcmuc
Palm Bcacm. FL 33480
Tci-CMiONC: 407-6S5-7297
TCLtfAJi; 407-833-6726
WiNTHROP, STIMSON, PUTNAM & ROBERTS
One Battery Park Plaza
New York, NY I0004 - I-J90
TcLePMONE. 212-ese-iooo
TCLCrAX: 212-ase-isoo
TCLCX: ezest WINSTIM
February 14, 1994
2 Tmwocmohtom AvtMUC
LOMOON EC2N 2/y> Emglamo
TClX^MOMC OII-447I-628-4
TciXrAX Oii-447(-e3e-044)
Rue OU TACITuftNC 42
B-I040 B«USSCl.S. BCLCIUM
1tLt»nOMf OII-322-230-I392
TcitrAi OII-322-230-9288
17-2. NiSmi'Sminbasmi 2-Cm
HtMATO-HU, Tokyo IOS, Ja'AN
Ttu:^MOMC:Olt-ei3-3437-97«
TtLCTAM 011-813-3437-9261
ZSOS M<A PACirtc FiNAHCC Ton
CiTiSAMN Plaza
3 Gamocn Roao. Ccmtmal, Homc V
TciX^MOHC. OII-852-530-340
TCirrAJi: Olt-852-530'335S
Mark R. Hellerer
COUNSEL
Hi-a5«-t7e7
TO WHOM IT MAY CONCERN:
I am writing in support of the appointment o£.
Michael Bromwich as head of the Office of Professional
Responsibility of the Department of Justice.
I have known Michael for nearly eleven years both
as a prosecutor and as a private attorney. I worked directly
with Michael in the United States Attorney's Office for the
Southern District of New York for several years from 1983
until he left the office to join the independent counsel
investigation. During that time I was able to observe
Michael's performance in a number of criminal cases,
including several trials. I was also able to observe him m
his position as deputy chief of the Narcotics Unit of the
U.S. Attorney's office. Since that time I have had the
opportunity to discuss legal matters with him on a number of
occasions.
I have found Michael to be a truly outstanding
lawyer, possessing a keen intellect and a facility for legal
analysis. He has also demonstrated great trial skills and an
ability to argue persuasively both to the court and to
jurors. Moreover, he has consistently displayed a tremendous
sense of judgment and fairness in dealing with defendants,
lawyers and witnesses.
Michael is extremely well qualified to handle a
supervisory role at the Department. He has the capacity to
work extremely well under the most difficult and strenuous
situations. In addition, he has a tremendous talent for
working well with other people and for supervising their
work.
Further, I believe Michael to possess an extremely
high sense of legal and personal ethics. In my experience,
he has demonstrated a true commitment to "doing the right
thing" in every situation, regardless of outside pressures
and considerations.
473
"2~ February 14, 1994
In short, I have no doubt that Michael will make ^
l7lLT"^":''"'f -^"^^'^ib^tion to maintaining the Integrity
of the Department of Justice as Chief of the Office of
Professional Responsibility. Indeed, I cannot imagine a
person better qualified to hold that position. "^^^"^ ^
I will be pleased to elaborate further on mv
opinions. If called upon to do so. ^
Very truly yours.
Mark R. Hellerer
474
UNIVERSITY OF WASHINGTON
SlAITl r. WASIIINC. ION 98105
S(l>ool of Imw
Condon Hull. J R- 20
February 24, 1994
To Whom It May Concern:
I write to support in the strongest possible terras the
nomination of Michael R. Bromwich for Inspector General for the
United States Department of Justice. I have known Mike Bromwich
since 1985, when we both were Assistant United States Attorneys in
the Southern District of New York. He is an outstanding lawyer
with an impeccable sense of legal ethics and professional
responsibility. I can think of no one better qualified to serve in
the position for which he has been nominated.
I worked closely with Mr. Bromwich for almost a year, when I
was assigned to the Narcotics Unit. He was the Deputy Chief of
that Unit, and so I had daily contact with him. He was an
excellent supervisor in all respects: careful, thoughtful,
decisive, and open to considering all points of view. He always
had very good advice and exercised sound legal judgment. He had
the reputation of being a tireless and thorough investigator. He
was universally respected by the Assistant United States Attorneys
and law enforcement agents with whom he worked.
I also had the very good fortune of trying a six week
narcotics trial with Mr. Bromwich. The case. United States v.
Vasta et al. . SSS 86 Cr. 60, involved eight defendants, numerous
witnesses, and hundreds of exhibits. His skills as a courtroom
lawyer were simply outstanding. He was thoroughly prepared and
well-organized, and conducted himself in a most professional
manner.
Mr. Bromwich -would bring to the position of Inspector General
his considerable skills as a lawyer, investigator, and supervisor.
Given these skills and his utmost professionalism, he is
particularly well-suited to the task of overseeing investigations
of other lawyers for professional misconduct. Finally, I have
never seen Mr. Bromwich 's conduct as a prosecutor affected in any
manner by political or other improper considerations.
/ 100 Nt: Gim/i/o l'nrl;wiy. SftiiiU Wa,l„„fpon 'JHIO") 1 1 AX (206) 54} - 'if>7l
s
475
In sum, I give my unqualified support to Michael Bromwich
nomination as Inspector General. Please feel free to contact me if
I can provide any further information.
Very truly your^
(^^ It l^zit.-iU '/
Annmarie LevirTs^
Assistant Professor of Law
Telephone: (206)685-8985
476
WASMINCrOH
MIAMI
OALTIMORC
TAMPA
ZUCKFRMAN, Sl'AFDUlt, GOLDSTEIN, TaYIjOR & KoiJKEtt
1114 AVCNUe OF TM£ AMERICAS
HCW VORK, MCW YORK I003«
(2121 '«7B-«eOO
Fcbraiiy 22. 1994
TClXCOPItR
<il2l <'7»«-,l2
¥n<ITER*S NO.
(212) 479-6501
Tci Whom It May Ctinccm:
This letter is being written on behalf of Michael R. Bromwlch, whom I have
known as a colleague and Tricnd Tor over ten years. I understand that Mr. Bmmwich has been
iKiminaiod for the position of Inspector General of the IFoited States Department of Justiec.
]la.scd upon my cxtcresivc profcssiional dealings with Mr. Bromwich, I am able to give him my
enthusiastic recommendation and itutc that I believe it would be difTicult to find a more able
candidate for Inspector General.
Mr. Dromwich and I first became acquainted when wc served together as Federal
proNccutoo* in the United Sniies AlUimcy's Office for the Southern District of New York under
kudolph W. Giuliani. Mr Bromwidi initially worked under my supervision, when 1 was
Deputy Chief (if the Narcotics Unit in the United States Attorney's Office and quickly showed
him.sclf to be one of the most dedicated and conscientious lawcr^ in the Office. I also had ample
<ipportunily to observe Mr. Bromwich's performance during the following years as wc both
rotated through dirfcrcnt units in tbc Office, and I ultimately became Deputy Chief of the
Criminal Division. Mr. Bromwich became one of the stellar lawyers in the Office, known not
only for his iniclligenee and trial abilities but also for his judgment and highly developed sense
of cthic<;. 1 have not known any lawyer in ray twenty years' cxpcrieocc who surpasses Mike in
his ethical sca<(c. I have never known him to be affected by any extraneous consideration in
making decisions on how to proceed, lie never showed himself to be the sort of prosecutor wh<i
would be swayed by political considcratioas or self interest. Mike calkxl the shots exactly as
he saw them with absolutely no regard for anything but justice.
There is likewise no doubt that Mr. Bromwich has the organizational and
leadership abilities f<»r a pasition swich as Inspector General. He is a highly of;ganizcd person
who never hesitated to assume rc<5ponsibllity over complex arvl tin>c-consuming tasks and U*
supervise others in a well-siruclurcd team approach. He is definitely a "can do* sort of person
who can function in extremely complicated situations to obtain the best results.
Oftentimes one is asked to write nxommcndatioos for associates, and (vic
complies out of courtesy «ir obligation. This is not such a case. When I learned of his
nomination. I could not have been more encouraged by the fact that the political process can.
in fact, result in the nomination of someone who is not especially "political' but who ju.<it
happem to he an ouWtanding candidate for the position. I would be more than happy to answer
any questions about Mr. Bmmwich based upon my extensive experience with him. I look
fiirward to hLs confirmation and appointment. ^
477
Stein, Zauderer, Ellenhorn, Frischer & Sharp
AlCMAnO T SMAft^
MANNT rNlSCMC*
OAVIO M CLi.CMMO*M
MAMA C ZAUOCMCM
SIOMCV M STCIN
• CMTMAMO C SCi-LlCn
MOANNC L MAMN
LOUIS M. SOlOMOm
OAVtO C NACMMAN
*5 ROCKCFELLCB PLAZA
NEW YORK. NCW YORK lOHl
(212) 9S6-3700
r-AcsiMicc (2*z) vse-Aoes
JOHN J O'COMMCLL
«>CHAao O MARSMALI.
0» COWMSc^
'CLICC J. BATLAN
JOSt.M M rCRKANOCI
• Cf»i c COLOMAN
STCVCN J LCviHC
•lA^CS MOaCAT PICOTT. jf»
CAAOlinc S. AWCSS
MAL S SHArTCL
February 15, 1994
Re: Michael Bromwich
To Whom It May Concern:
It is with great enthusiasm that I write in sup-
port of the nomination of Michael R. Bromwich for Inspector
General of the United States Department of Justice.
I first met Michael more than ten years ago, when
he joined the United States Attorney's Office for the
Southern District of New York. Over the years, I got to
know Michael on both a personal and a professional level .
When we first met, I was Chief of Appeals and, in that
capacity, supervised Michael's appellate work and also
served as a sounding-board when he sought to talk through
difficult legal issues that he encountered as a prosecutor.
Michael quickly distinguished himself as one of
the young "stars" of the U.S. Attorney's Office. My own
contact with Michael confirmed that that reputation was
amply deserved. Even at a very early stage of his career,
he took on complex and otherwise difficult investigations
and trials, and handled them with the ability and self-
confidence of a seasoned lawyer.
More importantly, Michael's thoroughness and
intelligence were matched by his fair-mindedness and
decency. As a prosecutor, Michael consistently sought to
achieve the just result, without regard to any political or
personal considerations. Simply put, Michael was surely a
formidable prosecutor, but never an overzealous one.
I am aware that in connection with the Oliver
North case, the defense complained of misconduct on
Michael's part; I am also aware that Judge Gesell rebuffed
that challenge. As both a prosecutor and then a defense
X
478
Stein. Zauderer. Ellenhorn. Frischer & Sharp
February IS, 1994
Page 2
lawyer, I have seen various criminal cases in which charges
of prosecutorial misconduct - like charges of ineffective
assistance of counsel - were used as strategic tools by the
defense. Absent substantiation of a charge of that nature,
the mere fact that it was lodged (and here rejected) should
not be permitted to destroy or blemish the reputation of an
individual like Michael Bromwich, whose integrity is of the
highest order.
Respectfully submitted,
i~4^i.^t..,.4ut^ (^ VyL-t^
Roanne L. Mann
RLM/aw
HOWARD, DARBY & LEVIN
479
WARREN CCA>-\V<OOI)JK STKPICEN B LANO
WILUAM R COLUNS
LAWRENCE A DARBY III
JOHN P. COURARY
HARRY C HIVES
MICHAELS HOPKINS
PHIUPK HOWARD
iACK P LEVIN
AARON R. MARCU
SARA E MOSS
C WILUAM PHILLIPS
SCOTT F SMITH
KELLY VANCE
1330 AVENUE OKTIIK AMERICAS TELi;PIIONE 2I2«4I ,nnn
NEW YORK. NY 10019 EAX 212 »4, ,010
February 22, 1994
Re: Nomination of Michael R. Bromwich. Esq.
To Whom It May Concern:
It is my privilege to write in support of the
nomination of Michael Bromwich to be Inspector General of
the Department of Justice. I have known Mike since May 16,
1983, the day on which we were sworn in together as
Assistant United States Attorneys for the Southern District
of New York, and I can think of no lawyer in the United
States who could serv^e better, more effectively, or with as
much integrity as Inspector General than Mike.
I had the honor of serving for four years with
Mike in the Southern District of New York. I saw first-hand
his development as a lawyer, as a public servant, and as a
leader of others. He was a model of integrity, judgment,
determination, and professionalism. He attacked difficult
investigations with creativity and vigor, but with the sense
of fairness that all prosecutors should, but do not always,
keep uppermost in their minds in serving the cause of
justice. To be sure, Mike's work resulted in an
overwhelming percentage of convictions; but the defendants
always were convicted fair and square.
In the years that I have known and worked with
Mike Bromwich, he has scrupulously observed the law, the
constitutional rights of the accused, and the codes of
ethics that govern our profession and the work of the
federal prosecutor. I have never seen any sign that he
480
To Whom It May Concern
would permit politics or any other inappropriate
consideration to influence him in the discharge of his
duties. I have complete confidence in his integrity, and I
firmly believe that he would be an outstanding leader of the
Justice Department's internal investigative unit.
I would be pleased to answer any reader's specific
questions or to amplify these expressions of my respect and
admiration for Mike.
Very truly yours.
Aaron R. Marcu
481
U.S. Department of Justice
United States Attorney
Southern District of New York
The Silvio J. MoUo Building
One Saint Andrew's Piaia
New Yort, New YoHc 10007
March 1, 1994
To Whom It May Concern:
Re; Michael Broinwich
I write to supply you with information regarding Michael
Bromwich, who has been nominated to the position of Inspector
General for the Department of Justice. My career has been with the
United States Attorney's Office for the Southern District of New
York where I have been an Assistant for almost twenty-four years,
during which time I also served on the Watergate Special
Prosecution Force. During these years I have seen many Assistant
United States Attorneys pass through the office, and I can say
without question that Michael, with whom it was my honor to serve
from 1983-1987, was among the best and the brightest.
Michael became an experienced trial lawyer during his
time in our office, and was promoted to a supervisory position
because of the universally held view that he had excellent
judgment. The qualities of experience and sound judgment are, in
my view, precisely what are necessary to be an effective Inspector
General. Michael will have the experience to review the actions of
prosecutors and others in context, and the mature judgment to
evaluate their conduct fairly and in light of all applicable
ethical standards.
In sum, I have no doubt that Michael would perform the
duties of Inspector General in an outstanding manner, and that the
Department of Justice would be honored by his presence in that
position.
By:
Very truly yours.
shIrah neiman
Deputy United States Attorney
Telephone: (212) 791-0045
482
\viDLLKiE FARR & Gallagher
February 23, 1994
To Whom It May Concern
This is Buhiaitted in ettipport of the nomination of
Michael Bromvich to serve aa Inspector General o£ the
D^>axtiiient of Justice. Michael and I served together as
Assistant United States' Attorneys in the Southern District
of New York in the Narcotics Unit of the Criminal Diviaion.
I continued to work with Michael %rhen I moved on to the
Appeals Unit of the Criminal Division and later when I
served in several supervisory positions under the then
united States Attorney, Rudolph W. Giuliani. Thus. I was
able to observe firsthand Michael's development as a lawyer
and his outstanding skills as a prosecutor.
Michael handled some of the office's most
significant and complex narcotics prosecutions and was
frequently called upon to advise colleagues on ixivestigative
strategies and trial tactics. One case I recall in which
Michael was the principal Assistant involved significant
comq>tion aiaong guards at the Metropolitan Correctiozi2d
Center in New York.
In all of his cases, Michael demonstrated both
courage and extremely sound judgment. He was an outstanding
Assistant United States Attorney and I have no doubt will
serve with great distinction if the ptiblic is fortunate
enough to have his services again.
Sii^cerely^
ito Romano
BS CMC SM fttwl MCAZSaBOt
iw i,^ NT iooa-€6» wvmen
483
SUITC IIOO
lOOr PENNSYLVANIA AVENUE, N.W.
WASHINGTON. O.C. 20004-2S0S
February 11, 1994
To whom it may concern:
Re: Michael Bromwich
I served from 1979 to 1986 as an Assistant United States
Attorney for the Southern District of New York, and as Chief of
the Securities and Commodities Fraud Unit from 1984 to 1986.
Since 1986 I have been a partner in a large Washington law firm.
I have known Mike Bromwich since our overlapping tours in the
U.S. Attorney's Office, and we have maintained our acquaintance
here in Washington. I regard Mike Bromwich as among my best
professional friends, although we are not close personal friends.
Mike Bromwich would rank high on my list for any sensitive
job in public service, for reasons that can only be explained by
describing the most difficult experience of our tenure in the
U.S. Attorney's Office.
About ten years ago a fellow prosecutor developed a drug
habit, and stole hundreds of thousands of dollars in cash and
large quantities of narcotics held as evidence in the U.S.
Attorney's Office safe. At the time this was discovered, this
prosecutor had actually selected a jury in order to commence the
trial of a heroin importation case, for which he himself had
stolen and disposed of the narcotics evidence.
It exaggerates only a little to say that the reaction to
this discovery in the U.S. Attorney's Office was a collective
nervous breakdown. There were those who were preoccupied with
sympathy for their colleague, and others who were determined to
see that he be made a special example. There was no one who was
not profoundly and personally affected by this shocking breach of
trust.
It was Mike Bromwich, however, who was first to ask "what
about the case?" That is, the heroin importation prosecution
that had been left in a shambles because the prosecutor had
stolen the drugs. As matters stood, unless the U.S. Attorney's
Office pursued the case immediately, the charges against two
narcotics importers would have to be dismissed for good. It was
Mike Bromwich who stepped forward and, literally over night.
484
To whom it may concern
February 11, 1994
Page 2
picked up the pieces and tried the case.
The fact that both defendants were convicted says a lot
about Mike Bromwich's lawyering skills. More important, though,
is what that experience teaches about Mike's dedication to the
mission, and his sense of obligation to the public service he has
sworn to render. At a time when others were preoccupied by a
tremendous personal shock, Mike Bromwich demonstrated a unique
strength of character and ability to put aside outside pressures
to see that the job got done.
Mike Bromwich will bring to any public service this same
resistance to outside influences and close focus on the -
obligations of the job at hand. Years down the road, those
responsible for his appointment and confirmation as Justice
Department Inspector General will take great satisfaction in
having selected him.
If you have any questions, I can be reached at
(202) 624-2745.
Very truly yours.
Peter J. Romatowski
485
Bart M. Schwartz
219 EAST 49TH STREET
NEW YORK. NEW YORK 10017
February 14, 1994
To Whom It May Concern:
I am a Republican who has supported Rq)ublican
candidates for national office. I am also proud of having supported
others, when I knew the candidate and believed in his or her ability to"
govern fairly and honestly.
I am an attorney who served as chief of the Criminal
Division under United States Attorney Rudolph W. Giuliani and served
as Mayor Giuliani's volunteer Coordinator of the Economic Development
Screening and Search Committee.
When I was Chief of the Criminal Division Michael
Bromwich was an Assistant United States Attorney who worked under
my supervision. I had the opportunity to work with Mr. Bromwich and
make judgments about him based upon my personal experience.
I always found Mr. Bromwich to be a fair, ethical and
conscientious public servant. No doubt he was a tough prosecutor who
worked to put criminals in jail. But he always worked within the
constitutional and ethical rules which govern a prosecutor's conduct.
Mr. Bromwich never allowed political considerations to enter into his
decisions. Indeed, politics were never an issue when reviewing or
discussing cases with Mr. Bromwich. He always dealt with matters on
the merits.
Mr. Bromwich displayed a keen sense of fairness and
ability to judge the conduct of others fairly and based on the facts. I am
confident that he has the ability to judge the conduct of other prosecutors
and individuals in the criminal justice system. He understands his ethical
obligations, as well as the obligations of others. He has the sti^ength of
486
February 14, 1994
Page 2
character to resist reaching the "popular" result and to ensure that the
right and correct result is achieved. Finally, I believe that he has the
ability to train others, and influence others who will work with him, so
that they will aspire to the same high standards Mr. Bromwich sets for
himself.
Without any reservation whatsoever, I endorse Mr.
Bromwich's nomination to be Inspector General of the Dqiartment of
Justice.
Very truly yours.
Bart M. Schwartz
BMS/cg
487
BOGLE& Gates
LAW OFnCES
UNDA C. SEVERIN
Two Union Square
601 Union Street
Seattle, Washington 98101-2346
Main Office: (206) 682-5151
Facsimile: (206) 621-2660
Direct Dial: (206) 621-2690
Anchorage
Bellevue
Olympia
Portland
Tacoma
Vancouver, B.C.
Washington, D.C.
March 7, 1994
To Whom It May Concern:
r,^ ■ ^ ^-^ write in support of the nomination of Michael R
orjustic5°^ r'^H^^'^e^ ^""""' ^°^ ^^^ ""i^-^ states Department
of Justice I have known Mr. Bromwich since 1984, when I became
New''?orr'"l wSrk^d ll'^^r f'^f""^ '" "^^ ^°"^^^^" Dlstrict'or
1?9? whin T ^°f^^^,3s f federal prosecutor in that Office until
1992 when I entered private practice in Seattle. Based on mv
experience working with him, I believe that Mr! Bromwich is
extremely well qualified to serve in the position ?SrShich he
has been nominated. He combines outstanding legal abilities with
a deep commitment to fairness and justice. acuities with
Drosecutn/''\?f°"''T''^ fnjoyed an excellent reputation as a
prosecutor After I joined the United States Attorney's Office
L^^ i^-^^^'"''^'' '^''^^ ^^ ^^^ ^^"'^^"^ to whom I could turn for
sound advice. He carefully considered the facts and the law
poinS ITTeT'il tr^ h'"^^"^^' ^"^ ^^ ^^^ considerate o? all
n?f?^o ■ "^.''^s highly respected by everyone in the
a tSl lawer""'f '^"^°^' ^ " '^^^^ ^^^"^^^ ^"^ writer and as
a trial lawyer. Moreover, he enjoyed excellent relations with
no H^'^J^r?''^^ ^"^ "^^^ ^^" enforcement agents. In s^m he
facet'of hirworlJ '" " thoroughly professional manner iA eJery
as a oroseinfo^ ^f f 5^*"^"^ prosecutor. Never was his conduct
imorooer ron^?H ^"^^^^^^ ^".^"^ ""^nner by political or other
reproach. "^- "^^ character and integrity are above
-hi.. c^r.^,r.f^' ^f°™"ich's many talents would enable him to serve
Drndia?nn«7 "^J i", ^^ • P°^ition of Inspector General. His
orodigious legal abilities and his professionalism make him
488
March 7, 1994
Page 2
particularly well-suited to the task of overseeing investigations
of other lawyers for professional misconduct.
Mr. Bromwich's nomination for Inspector General has my
unqualified support. Please contact me if I can provide any
further information.
Very truly yours,
BOGLE & GATES
^^ C sj^^~
Linda C. Sever in
489
U.S. Department of Justice
Uniied Slates Aiioniey
Souilient District of New York
To Whom It May Concern:
ViC Silvio J. Mollo liuildui^
One Saifit Andfc*^''s I'law
Wo.- York. Nc^- York 10007
February 15, 1994
I write to support the nomination of Michael Bromwich to the
position of Inspector General for the Department of Justice.
Michael is a superb lawyer and ethical practitioner, and is the
right person for such an important job.
Michael and I served together at the United States Attorney's
Office from 1982 to 1985, and have remained friends ever since. In
an Office that prides itself on selecting bright young lawyers to
serve the public interest, Michael was among the very best and
brightest. He was a tireless investigator who pursued the truth
wherever it led. More importantly, he was as "straight a shooter"
as one could ever wish to know. If I had a difficult call in a
case, I sought out Michael's judgment. I was not alone in that
regard. All of us knew that Michael would give sound advice --
that he was not "pro-prosecution" but "pro- justice" -- and that he
brought no preconceived biases to the task.
These qualities will serve the Department of Justice well if
Michael is its Inspector General. Michael knows the enormous power
that our system confers on prosecutors and knows that that power,
in the wrong hands, can be abused. Of two things I am certain:
Michael will not tolerate ethical lapses, but at the same time he
will not criticize before carefully determining the pertinent
facts. His touchstone will always be fairness. In short, in
Michael, the Department will have an experienced hand -- a
prosecutor tested in some of the most significant courtroom battles
of our day -- and a judicious mind, who will seek to do justice in
his every decision.
490
February 15, 1994
page 2
As a federal prosecutor and as a citizen, I applaud and
enthusiastically support Michael Bromwich's nomination. The
Department and the country will be fortunate to have him as
Inspector General.
Sincerely,
i^iu^
Paul Shechtman
Chief, Criminal Division
491
TCLCPmONC: 202/Ge2-O200
TCLCX: I»7<7t
FACSIMILE: 202/662-4e'43
vffiTcn's oiRecT dial number:
FULBRIGHT & JaWORSKI
LLP.
A REGlSTERCO LiMlTCO LtABILrTV PARTNERSHIP
eoi Pennsylvania Avenue. N W
Washington. DC. eooo^aeo^
HOUSTON
WASHINGTON. DC
AUSTIN
SAN ANTONIO
DALLAS
NEW YORK
LOS ANGELES
LONDON
ZURICH
HONG KONG
February 17, 1994
CQNFIDENTIAT.
Mark Gitenstein, Esq.
Mayer, Brown & Piatt
2000 Pennsylvania Avenue, NW
Suite 6500
Wash, D.C. 20006
Re: Michael Bromwich
Dear Mark:
As counsel for John Poindexter, from time to time I had occasion to deal
with Mike Bromwich while he was a member of the Special Prosecutor's office
investigating the Iran-Contra matter.
In my opinion, Mr. Bromwich always acted in a highly professional
manner. I have also had to meet and deal with Mr. Bromwich since he left the
Special Prosector's office, and I have found him to be an extremely principled person
whose integrity is beyond question.
If you need any further elaboration, I shall be pleased to provided
additional information.
Very truly yours,
Richard W. Beckler
RWB/ecf
492
David P. Doherty, Esq.
295 Greenwich Street. Apt. #3A
New York, New York 10007
March 14. 1994
To whom it may concern:
Michael Bromwich headed-up the independent counsel's investigative team which
focussed on the Central Intelligence Agency during the 1987 timeframe while I was General
Counsel of the Agency. As a consequence, I had extensive dealings with Mr. Bromwich
involving various investigative requests and related matters. Needless to say, much of the
information sought involved very sensitive and highly classified information.
I found Mr. Bromwich to be thoroughly professional in carrying out his assigned
responsibilities. He proved to be an experienced, conscientious and very able lawyer. While
he was aggressive in carrying out his responsibilities, he brought a sense of balance to his
work that permitted a reasoned discussion of important issues and demonstrated a concern for
the unnecessary disclosure of classified information. Most importantly, in my view, Mr.
Bromwich possessed the two most important qualities of a good prosecutor, that is, good
judgement and a respect for fairness.
All of these qualities, I believe, would make Mr. Bromwich an outstanding Inspector
General of the Department of Justice.
Sincerely,
^xfe-^^.^2^2^^^
493
UNIVERSITY OF VIRGINIA
SCHOOL OF LAW
580 Massie Road
Charlottesville, VA 22903-1789
Fax 804 / 924-7536
Earl C. Dudley, Jr.
Associate Professor of Law
804 I 924-8813
March 2, 1994
To Whom it May Concern:
I am writing with respect to the nomination of Michael R. Bromwich to serve as
Inspector General of the Department of Justice. My contact with Mr. Bromwich grew out of
his service as a Deputy Independent Counsel in the Iran/Contra investigation. I represented
Richard Miller in that investigation. Mr. Miller pled guilty to a single count of conspiracy to
defraud the United States and testified as a government witness at the trial of Lt. Col. Oliver
North.
I worked closely over a period of approximately one year with Mr. Bromwich and
others involved in the Iran/Contra investigation. I have the highest respect for his ability as a
lawyer, his ethical standards, and his judgment. I think he would make an outstanding Inspector
General.
While Mr. Bromwich and I were adversaries throughout much of our professional
intercourse, I found him to be trustworthy, reasonable, and competent. His judgments, as I
observed them, were those of a consummate professional prosecutor acting in light of the
evidence available to him. At no time did politics, personalities, or other extraneous or improper
considerations appear to impinge upon his course of action. My colleagues and I negotiated a
complex plea agreement with Mr. Bromwich and his colleagues. Throughout that process I felt
that he was fair with me and with my client, and that he displayed a true professional's concern
for the rights of my client. I feel the same way in hindsight.
I also worked with Mr. Bromwich in preparing my client to testify at the North
trial. That process confirmed my view of his professionalism and ethical standards. He never
sought to expand my client's testimony beyond what the existing record showed or what my client
was comfortable in stating as the truth. Because of my client's prior personal and professional
relationship with Col. North, I made it clear that Mr. Miller intended to meet with Col. North's
counsel in advance of the trial. Mr. Bromwich never sought either to impede or to intrude upon
our dealings the Mr. North and his counsel.
The job of Inspector General in the Department of Justice seems to me an
extremely important one in light of growing complaints of abuse of office by federal prosecuting
attorneys. There are many lawyers for whom I have great respect but whom I would nonetheless
494
hesitate to endorse for a job of this magnitude calling for such great delicacy of judgment I
have no hesitation endorsing Mr. Bromwich. I fee! confident in light of our dealings in the
Iran/Contra investigation that he possesses the skills, the integrity, and the judgment for this
demanding position.
Sincerely yours, \
Earl C. Dudley, Jr.
I
495
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February 14, 1994
To Whom It May Concern:
This brief evaluation of Michael Bromwich is based entirely on
my dealings with him in the retrial of Oliver North. I was counsel
for a principal prosecution witness, Robert C. McFarlane, and took
part in the preparatory sessions; an associate, Peter Morgan, was
present during the trial testimony.
In my dealings with Mr. Bromwich, he was consistently
professional, friendly, courteous, and thorough. He was careful to
observe the fine line between obtaining a clear idea of Mr.
McFarlane' s testimony without undertaking to "coach" or "push" him.
I would characterize him as an able and vigorous prosecutor who
felt professionally and conscientiously attached to the observance
of ethical limits in his preparatory work and, as I understood it,
in his trial conduct. (It helped that he occasionally displayed a
decent sense of humor. )
In this limited context, I am confident that he is equipped to
supervise investigations of prosecutors for alleged breaches of
profesional ethics. I never saw any evidence that his behavior as
a prosecutor was affected by political considerations or other
attitudes extraneous to the legal issues.
I discussed this letter with my client, who authorizes me to
say he agrees with my general opinion of Mr. Bromwich.
I am a registered Independent; I was a registered Democrat
before that, but with age, my political interests have become more
eclectic than electoral.
Sincerely,
Leonard Garroent
496
S I D L E Y 8c AU S T I N
A l*A»ITKi;*«SHII' IVri.l UlNt. l-RtlMlNSIftVAl « ONI*<»M At l»»KS
1722 Eye SmEET, N W
^■.,r-.^^ Washington, DC. 2000G
ClflCACO LONDON
Telephone 202: 73GaCX)0
LOS ANOELES TeLEX 80-400 SINGAPORE
NEW YORK Facsimile 202: 730-a7 1 1 tokyo
WRITBII'S DIRBCT MUMBEK »ov»v> i;'^!
(202) 736-8069
February 22, 1994
To Whom It May Concern:
I am writing to endorse enthusiastically the nomination
of Michael R. Bromwich to be Inspector General of the U.S.
Department of Justice.
I met Mr. Bromwich while representing Retired Major
General Richard V. Secord in connection with the Iran/Contra
investigation conducted by Independent Counsel Lawrence Walsh.
Based on my contact with Mr. Bromwich, which has
continued to date, I am convinced that he is extremely well
qualified to assume the position of Inspector General. Mr.
Bromwich possesses a keen intellect and is very experienced in
the conduct of sensitive investigations. More importantly, he is
a fair minded individual who will unquestionably act responsibly
and without partisanship in the execution of his duties. He is
an extremely well respected member of our legal community, and he
enjoys an outstanding reputation among h^ peers. As a result,
he is most deserving of confirmation.
TCG/jmf
'
497
LAW orFicts
JANIS, SCHUELKE & WECHSLER
I7^e MASSACHUSETTS AVCNUe, N W
WASHINGTON. OC 30036
IICHARD JANIS TclCPmOnC
I202I eei 0600
February 15, 1994
To Whom It May Concern:
I am writing on behalf of the nomination of Michael R.
Bromwich to be Inspector General of the Department of Justice.
I first met Mr. Bromwich in early 1987, when he was a Special
Counsel in the Office of Independent Counsel Lawrence E. Walsh. I
represented Albert Hakim, one of the principal targets of the
Iran/Contra Independent Counsel investigation. Mr. Hakim
ultimately was indicted in the central Iran/Contra case, along with
Admiral John Poindexter, Lt . Col. Oliver North and Major General
(Retired) Richard Secord.
During the course of these proceedings, in which Mr. Bromwich
and I were adversaries, I had occasion to deal with him on a
regular basis, both before and after Mr. Hakim's indictment. Those
contacts ranged from discussions regarding scheduling and proce-
dural matters to meetings and arguments regarding substantive
matters, as well as active litigation over disputed legal issues.
Throughout my dealings with Mr. Bromwich, I found him to be
extraordinarily capable and professional at all times. While I
have been publicly quite vocal in my criticism of the Independent
Counsel scheme in general, and the performance of Lawrence E. Walsh
in particular, I have nothing but the highest personal and
professional regard for Mr. Bromwich. I consider him to be a man
of significant experience, exceptional temperament and unquestioned
integrity and professionalism. As an adversary, I found him to be
tough, but reasonable, open-minded, ethical and fair. I trusted
him and felt that when he made a commitment or representation, I
could take it to the bank. I might add that my personal experience
in dealing with Mr. Bromwich turned out to be completely consistent
with what I had been told in advance about Mr. Bromwich by mutual
acquaintances with whom I had made inquiries.
I think it speaks volumes that, notwithstanding the stakes
involved in the Iran/Contra case, the contentious nature of the
litigation and my own strongly-held negative views about the manner
in which Mr. Walsh conducted his office, I came to have the highest
regard and respect for Mike Bromwich and now consider him to be a
498
friend. I was delighted when I heard that he had been selected to
be the Inspector General at the Department of Justice. His wealth
of experience, unquestioned integrity, fairness and professionalism
make him an exceptional choice. He is precisely the type of person
that the public needs to have serving in such an important and
responsible position. ^
NRJ: jkb
Yours truly.
N. Richard Janis
499
CO.%T?i^£NT«AL
UNITED STATES DISTRICT COURT
CHAMBCRS Of"
JUDGE ROBERT L CARTER
Unitco States Courthouse
Foley Square
NEW YORK. N. Y tOO07
February 18, 1994
Mark Gitenstein, Esq.
Mayer, Brown & Piatt
2000 Pennsylvania Avenue
Suite 6500
Washington, D.C. 20006
Dear Mr. Gitenstein:
wh^n =.= My acquaintance with Michael Bromwich dates from 1983
when, as an Assistant United States Attorney in the Southern
banr'^^Hn"' ''^\^°^''' he prosecuted a case before me involving
bank robbery, with a customer being held hostage. The trial
te™f of ^^'^ ^ "^^^ ■"^- ^'^^"•^i-h was then a young prosecuLr in
terms of time on the job, and this could have been his first
fb?litv r"-- "" ^^hibited first rate lawyering ski?il fnd the
ability to vigorously seek a conviction without untoward
anre?^?°"%'/""'- ' "^" impressed with the way he skillfully
and efficiently prosecuted the case. i^xxiruiiy
in a hiohi^^''^"^ r^" ^^^^''' "''■ Bromwich was before me again
distr?hn?i^ ^''^^'' Sk^^ involving a widespread conspiracy to
distribute heroin. The government seized $5.6 million in cash
exoerienc^f °' the trafficking. Mr. Bromwich was now an '
experienced prosecutor and handled this case with great skill
He brought home the case in a month, although a less efficient
Onf^rthe def'^^^r" "'^'""'*^' "^^ ^''^' '°^ ^ we^k or so linger,
been def^Lfn r'^^"''^'" ^^^^ proceeding who was acquitted hal
been defended by court appointed counsel. Mr. Bromwich
prosecuted him before me to require him to reimburse the
government for the costs of his defense since his financial
status did not warrant his having court appointed coCnsel
Bromwich alfhoLh^T K° f"^<^her professional involvement with Mr.
Bromwich, although I have maintained contact since then.
500
Mark Gitenstein, Esq. -2- Feb. 18, 1994
Mr. Bromwich was a first rate prosecutor. He is an
intellectually gifted and highly skilled litigator. I cannot
make a judgment as to his administrative capabilities, but as
insightful and intelligent as he is, and as organized as he was
in his case presentation before me, I would think him fully
capable of handling the oversight of the investigation of lawyers
for alleged breaches of professional ethics.
Mr. BroDwich never acted, in the cases before me, out
of political consideration. Indeed, I have no idea what his
politics are. My sense of him is of a fair minded individual,
who is governed by the highest ethical consideration. I cannot
imagine him doing any unethical act or taking unfair advantage of
an individual for political or unworthy reasons when in a
position of power.
Sincerely,
ROBERT L. CARTER
501
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES COURTHOUSE
NEW YORK. NV I0007
CHAMBERS OF
JUOCE MORRIS E. LASKER
February 16, 1994
To Whom It May Concern:
I am writing in support of the nomination of
Michael R. Bromwich, Esq, as Inspector General of the
United States Department of Justice.
I have known Mr. Bromwich since 1984 when he
first appeared before me as an Assistant United States
Attorney prosecuting a multi-defendant narcotics
conspiracy case known as United States v. Harold Barr.
et al. The case was a particularly complicated one
which required many meetings with Mr. Bromwich as
prosecutor, and counsel. Moreover, the trial of the
case lasted, as I recall, approximately one month and
post-trial hearings were held upon remand as to one
question by the United States Court of Appeals for the
Second Circuit.
In sum, my contact with Mr. Bromwich on a
professional basis were carried on over a period of
several years. Many of the meetings with him and other
counsel took place in my Chambers in an informal
setting. The proceedings required Mr. Bromwich as
prosecutor to make representations to the court, submit
affidavits and, in the instance of the post-trial
hearing to testify as a witness.
On the basis of this long and intimate
exposure to Mr. Bromwich and, as a United States
District Judge who has served since 1968, and is aware
of the importance of the position to which Mr. Bromwich
has been nominated, I declare without qualification
that I consider Mr. Bromwich to be a lawyer and
prosecutor at the highest professional level and that
he is a man and lawyer of highest ethical standards.
502
In my opinion, Mr. Bromwich is intellectually and
professionally well equipped to carry out the
responsibilities of the Inspector General as I
understand them, including the oversight of
investigations of attorneys, whether prosecutors or
not, for alleged breaches of professional ethics.
In discharging his responsibilities in the
litigation before me, Mr. Bromwich was never influenced
by any consideration extrinsic to law enforcement. I
am confident that he would discharge his duties as
Inspector General with the same circumspection.
I would be glad to answer any specific
(questions that a reader of this letter might wish to
put to me relating to Mr. Bromwich's qualifications to
fill the position of Inspector General of the Justice
Department.
Very truly yours.
/(jUj-M^
503
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF COLUMBIA
WASHINGTON 2000I
CHAMBERS OF
TANLEY SPORKIN
ITCO STATCS OlSTMlcr JUOCC
February 14, 1994
Subject: Nomination of Michael R. Bromwich
to be Inspector General of the
Department of Justice
To Whom It May Concern:
I am writing on behalf of Mr. Michael R.
Bromwich, Esq., who was recently nominated by
President Clinton to be Inspector General of the
Department of Justice. I have known Mr. Bromwich
for the past eight years. I have found him to be
an extraordinarily bright and capable attorney who
possesses the highest legal skills. Above all, he
IS a person of integrity and would make an
outstanding Inspector General.
I first met Mr. Bromwich during his
assignment as a member of the Office of Special
Counsel looking into the Iran-Contra affair.
While I found Mr. Bromwich to be a vigorous
investigator and trial attorney, at all times he
discharged his duties in a fair and responsible
manner.
I thought so much of Mr. Bromwich 's abilities
that when he completed his Special Counsel
responsibilities I appointed him on four occasions
to represent indigent defendants on a Pro Bono
basis. He accepted each of these assignments in
the highest traditions of the legal profession.
In each of the four appointments, he handled his
assignments as he would a retained client. On
these assignments, he contributed over 4 00 hours
of outstanding legal services. Mr. Bromwich never
submitted a voucher with respect to his criminal
justice appointments even though he was entitled
to compensation under the Criminal Justice Act.
504
According to the hours he spent on these four
cases, Mr. Bromwich would have been entitled to
some $30,000 in legal fees.
I always found Mr. Bromwich to be a lawyer
possessing outstanding legal skills. While he is
tenacious, he has always been fair minded.
If I can be of any further assistance, please
let me know.
Sincerely,
Stanley /Sporkin
505
KENNETH I. JUSTER
laOO NEW HAMPSHIRE AVENUE. N.W.
WASHINGTON, D.C. 20000-6883
February 14, 1994
Re: Michael R. Bromwich
To \-7hoia It May Concern:
I am writing to express my views with
regard to Michael R. Bromwich, who has been
nominated to be the Inspector General of the
Department of Justice. I have known Mike
since the early 1970s, when we were
undergraduates together at Harvard College.
We subsequently attended Harvard Law School
and the Kennedy School of Government together,
and have been good friends ever since that
time.
I regard Mike as an excellent lawyer who
has the highest ethical standards. He is fair
and impartial, and a person of great integrity
and outstanding intellect. I think he is
well-equipped to oversee investigations of
prosecutors and other lawyers for alleged
breaches of professional ethics. In short, I
admire Mike as an individual and value his
personal friendship.
I should note for the record that I am
currently a partner at the law firm of Arnold
& Porter. I previously served in the State
Department during the Bush Administration,
first as the Deputy and Senior Adviser to
Deputy Secretary of State Lawrence S.
Eagleburger, and later as the Acting Counselor
of the Department.
Sipci^rely,
/Kenneth I - Juster
506
TERRY F. LENZNER
February 21, 1994
To Whom It May Concern:
I have worked for both Republican and Democratic
administrations as follows; Trial Attorney, Civil Rights
Division, 1964-66; Assistant U.S. Attorney's Office,
Southern District of New York, 1966-69; Director, Office
of Legal Services, Office of Economic Opportunity,
1969-1970; Assistant Chief Counsel, Senate Select
Committee on Presidential Campaign Activities, 1973-74,
I have known Mike Bromwich as a professional
colleague for the last several years, having worked with
him and his law firm on a number of cases. I can state
without hesitation that Mike is an even-handed extremely
competent attorney. My judgment of him is that his legal
brilliance alone would dictate actions of only the
highest integrity. Beyond his skills, I know Mike to be
a person of total professionalism and I cannot imagine
any situation where his judgment would be affected by
anything except the merits of the matter at issue.
Indeed, as a government employee for over ten years,
I can imagine how intimidating it might be to have an|
Inspector General's investigation of ones career possibly
leading to criminal prosecution. I can only say that
anyone — including myself — would be fortunate to have«
Mike Bromwich conducting such an inquiry because it would
guarantee an absolute fair impartial review protected by
all appropriate safeguards of due process. Mike's whole
career and character guarantees that he would never
succumb to the greatest public or political pressure.
I cannot imagine finding another attorney better
qualified to serve as Inspector General of the Department
of Justice.
Very truly,
Lenznefr
507
Stern &. Greenberg
COUNSELORS AT LAW
HERBERT J STERN
STEPHEN M GREENBERG
JEFFREY SPEISEH
DAVID S STONE
JOEL M SILVERSTEIN
HOWARD O COHEN
75 LIVINGSTON AVENUE
ROSELAND. NEW JERSEY 07068
aOI 53S1900
FAX: 20I-535-9664
February 14, 1994
TO WHOM IT MAY CONCERN:
To introduce myself, I am a former United States Attorney
for the District of New Jersey, serving from 1970 to 1974,
and a former United States District Judge for the same
district haviny served from 1974 to 1987.
I have known Michael R. Bromwich for approximately seven
years. I came to know him when I was asked by Judge Walsh
to be special outside counsel for him in order to handle
the pretrial Kastigar motions in In the Matter of the United
States vs. Oliver North, etals. During my service with
Judge Walsh's office, I Ceime to know Mr. Bromwich quite
well. Mr. Bromwich is an outstanding lawyer and a truly
fine and dedicated prosecutor. He not only has exceptional
legal ability but is a very fine and very ethical person
as well. I haven't the slightest doubt that he has both
the moral and intellectual capacity to lead other attorneys
in investigating alleged breaches of ethics in the legal
or other professions.
I not only have not ever seen any evidence of Mr. Bromwich
having been influenced by political considerations, but
I know full well through my many contacts with him that
he conducts himself as a professional prosecutor wholly
separate and separated from politics.
HJS/jp
508
Hale and Dorr
CoUNSELLOkS AT LaW
The Willard Office Building
1455 Pennsylvania Avenue, N W , Washington, DC 20004
202-942-8400 • FAX 202-942-8484
February 25, 1994
To Whom It May Concern:
I write this letter in support of Michael Bromwich's
Ccmdidacy as Inspector General for the Department of Justice. Mr.
Bromwich is one of the outstanding lawyers of my generation, and
the country is fortunate that men of his caliber are prepared to
make personal sacrifices to enter public service.
I am a Republican of long standing. I have been a
registered Republican for many years, consistently voted for
Republican candidates, contributed money and resources to
Republican causes, and served in the Justice Department's Office
of Legal Policy during the Reagan Administration. I am sensitive
to issues of partisanship in the Executive branch cind, in
particular, in the Justice Department.
I know of no fairer or decent person than Michael
Bromwich, and can say with confidence that he would discharge the
duties of Inspector General aggressively and impartially. I can
say this from personal experience. From 1987 to 1989, I was a
member of the staff of Independent Counsel Lawrence Walsh and, for
a time, reported to Mr. Bromwich. The assignment of the
Independent Counsel, of course, was to investigate and, if called
for, prosecute persons who violated the law in connection with the
sales of arms to Iran and the provision of support to the anti-
Sandinista forces in Nicaragua. Many judgments of the political
branches of the government were called into C[uestion in that
investigation, and there was the real danger that partisan biases
could come into play.
In those years working with Mr. Bromwich, I found him to
be corrpletely ethical and fair in approaching such issues. He
expressed no political views on the prosecution and refused to
entertain partisan dialogue. He was painstaking in his regard for
individual rights and, in fact, was the Office's leading exponent
that the defendants should have the broadest possible access to
the evidence we had collected. Although a zealous advocate for
the government, he took equal pride in the fairness with which he
treated his adversaries. By the end of the investigation, Mr.
Bromwich was the lawyer in the Office who had won the broadest and
unqualified respect of all who caime into contact with him,
colleagues and adversaries alike.
509
February 25, 1994
From my own years in the Justice Department, I
understand -- and fully agree with -- the principle that those
charged with policing the Department's conduct must be above
partisanship and beyond reproach. I can say from personal
experience that I have known no lawyer that better meets these
standards than Michael Bromwich . I would urge that his candidacy
he given every favorable, and pron^t, consideration.
Please do not hesitate to contact me with any questions
you might have .
Very truly yours,
Geof fre
Stewart
-2-
510
V^nn^STON & STRAWN
FREDERICK M WINSTON (ieS3-t886|
SILAS H STRAWN (1691 1946)
DAN K. WEBB
(312) 558-S856
35 WEST WACKEH DRIVE
CHICAGO. ILLINOIS 60601-9703
(312) SS8'S600
FACSIMILE (31?) 556 5700
February 17, 1994
NEW YORK OFFICE
>'5 WATER STREET
NEW YORK. NY 10038^86.
(212) 269.ZSO0
WASHINGTDN. OC OFFICE
1«0 L STREET. NW
WASHINGTON, OC 200(»-3SO2
(202) 371.5700
To Whom it May Concern:
Michael Bromwich is among the most talented attorneys I
have worked with in my more than 20 years as a practicing lawyer.
He is an individual of impeccable integrity. For these reasons, I
enthusiastically support his nomination for the position of
Inspector General of the United States Department of Justice.
I met Michael in 1989 when I was selected to lead the
Government's trial team in United States v. John Poindexter.
Michael was near the end of his tenure at the Office of Independent
Counsel when I first became associated with that office. Shortly
thereafter, I worked with him extensively in connection with the
pre-trial proceedings in the Poindexter case. Michael's role in
those proceedings was of critical importance in our obtaining a
favorable result in the trial of the case.
Michael's conduct throughout those proceedings
demonstrated his considerable legal talents, wisdom and experience.
His approach to this prosecution was consistently guided by his
strong sense of ethics and a professionalism that reflected the
highest traditions of the Department of Justice. I was also
impressed with Michael's ability to handle the very sensitive
matters involved in that case with the utmost discretion.
In 1981, President Reagan appointed me as the United
States Attorney for the Northern District of Illinois, a position
in which I served until 1985. On the basis of my experiences as
the United States Attorney and as a colleague of Michael's, I am
confident that Michael is particularly well suited to oversee
sensitive investigations of prosecutors, other lawyers and
professionals for breaches of their ethical duties. Michael's
talents as a lawyer, guided by his uncompromising ethical sense and
unfailing discretion make him a perfect candidate for the position
of Inspector General.
cerely.
d^^'^-uJdL^
'Dan K. Webb
DKW/med
NOMINATIONS OF ROBERT HENRY, TO BE
U.S. CIRCUIT JUDGE; DEBORAH BATTS, RAY-
MOND FINCH, AND SOLOMON OLIVER, TO
BE U.S. DISTRICT JUDGES
FRffiAY, APRIL 29, 1994
U.S. Senate,
Committee on the Judiciary.
Washington, DC.
The committee met, pursuant to notice, at 10:19 a.m., in room
5D-226, Dirksen Senate Office Building, Hon. Howard M. Metzen-
3aum presiding.
OPENING STATEMENT OF SENATOR METZENBAUM
Senator Metzenbaum. I open this hearing with an apology to all
)f you. I apologize for being late. It is my understanding that the
/arious Senators who are with us this morning have all agreed
ihat, because Senator John Glenn has another commitment, we are
joing to let him proceed first.
Senator Glenn.
STATEMENT OF HON. JOHN GLENN, A U.S. SENATOR FROM
THE STATE OF OHIO
Senator Glenn. Thank you, Mr. Chairman. I appreciate it very
nuch. I am very happy today to introduce a man who I believe is
?oing to be a real superstar in the Federal courts: Dean Solomon
Dliver. I am also pleased that his wife, Louisa, and his sons, Solo-
non and Jonathan, could be here today, along with Mr. and Mrs.
Solomon Oliver, Sr. I would like for them to stand, if they would,
please.
Now, Mr. Chairman, there are also 16 brothers, sisters, in-laws,
and other family members here today. I am not going to read all
:heir names. Stand up, please, all of you. I think it is just great
'or you to all be here on this occasion.
Dean Oliver's inspiration to go into law did not come from read-
ing books or watching Perry Mason on TV. His inspiration came
Prom being beaten up as a young 16-year-old boy while driving
l;hrough the Deep South on the way to a church function in Florida.
The car young Oliver was riding in stopped at a gas station, and
when the 16-year-old boy tried to use the only men's room there,
a white gas station attendant assaulted him, hitting him repeat-
sdly and shouting that Bobby Kennedy had sent young Oliver there
to cause trouble.
(511)
512
All Solomon Oliver knew at that time was that Bobby Kennedy
was the Attorney General, and if a lawyer could instill such fear
in a man so filled with hatred and racism, he wanted to be a law-
yer, too.
He did become a lawyer, and a good one. After graduating from
New York Law School, Dean Oliver clerked for Judge William
Hastie, the first African-American appointed to the Federal bench.
Thankfully, Dean Oliver then came to Ohio. He joined the U.S. at-
torney's office, serving as chief of the civil section, where he super-
vised more than 4,000 cases, and later was the founding chief of
appellate litigation.
Dean Oliver currently serves as associate dean of the Cleveland-
Marshall College of Law. He has been very active in community ac-
tivities in the Cleveland area, including service for his church, for
the College of Wooster, and the Cleveland chapter of the NAACP.
Mr. Chairman and members of the committee, I could go on all
morning about Solomon Oliver, but I am not the one you want to
hear from today. I know Dean Oliver will serve with great distinc-
tion on the Federal bench. And, Mr. Chairman, I know that you
join me in this because we went together in suggesting this nomi-
nation to the President. So I am sure you will join me in expressing
the very highest of recommendations for Dean Oliver, and I am
glad to be here to have a chance to introduce him this morning.
Thank you very much for changing the order of the hearing.
Senator Metzenbaum. Thank you very much. Senator Glenn. I
want to tell you, you have convinced me. [Laughter.]
Senator Moynihan, we are delighted to have you with us.
STATEME>fT OF HON. DANIEL PATRICK MOYNIHAN, A U.S.
SENATOR FROM THE STATE OF NEW YORK
Senator MOYNIHAN. Thank you. May I ask Prof. Deborah Batts
to come up here at this point?
Mr. Chairman, Professor Batts has her mother with her today
and some family. Perhaps you would like to introduce them.
Senator Metzenbaum. We would love to meet them.
Ms. Batts. My mother, Ruth Batts; my sister, Denise Batts; my
sister, Mercedes Ellington; my daughter, Alix McCown; my son
Jamie McCown. And I also have some friends with me: Sandy
Farber and her son, Ben; Howard Clyman and his wife, Kathie
Roberts.
Senator Metzenbaum. It has got to be a very proud day for the
entire family and friends.
Senator Moynihan. Thank you, Mr. Chairman. And it is a very
proud day for New Yorkers. I appear here for Senator D Amato as
well. We have here one of our exemplary teachers and practitioners
of the law in New York. She is a graduate of Radcliffe College and
of the Harvard Law School. She went directly back to New York
where she served with some distinguished firms that would be fa-
miliar to you — Cravath, Swaine & Moore — and then in 1979 joined
the criminal division of the U.S. attorney's office for the Southern
District of New York. This is the court to which we respectfully rec-
ommend her.
After service, distinguished service, in the U.S. attorney's office,
she became a professor of law at Fordham University, where she
513
teaches regularly, teaches courses in property and domestic rela-
tions law, and is also simultaneously, and has been for the last 5
years, 4 years, a member of the Law Revision Commission of the
State of New York, a very dense and, to my mind, inassessable
subject which engages them over the years.
We are proud to recommend her, sir. She has the highest aca-
demic credentials. Her experience in the criminal division has in-
volved her in many things of great consequence and with great suc-
cess, and it is our honor to present her to this honorable commit-
tee.
Senator Metzenbaum. Your recommendation is very meaningful
to this committee. Senator Moynihan, and we appreciate it very
much. We will be very pleased to go forward with the hearing in
connection with Ms. Batts a little bit later. Thank you very much.
Senator MOYNIHAN. Thank you, Mr. Chairman.
[The prepared statement of Senator D'Amato follows:]
Prepared Statement of Hon. Alfonse M. D'Amato, a U.S. Senator From the
State of New York
Mr. Chairman, I am honored today to present to this committee Ms. Deborah A.
Batts, whom the President has nominated for appointment to the U.S. District
Court, Southern District of New York. I would also like to recognize Ms. Batts'
mother, Ruth, her children, Alix and Jamie, her sisters, Denise and Mercedes
Ellington, and her friend Sandy Farber, and her son Ben.
Ms. Batts comes before this committee with a comprehensive legal background.
After graduating from Harvard Law School in 1972, she began her legal career as
a law clerk to Judge Lawrence W. Pierce who was appointed to the U.S. District
Court for the Southern District of New York by President Nixon, and later ap-
pointed to the Court of Appeals by President Reagan.
After clerking for Judge Pierce, Ms. Batts went on to an associate position with
the firm of Cravath, Swaine and Moore in New York City, where she worked until
1979. , ^
After leaving this firm, Ms. Batts became an Assistant U.S. Attorney with the
U.S. Attorney General's OfRce in the Criminal Division. While working in the Major
Crimes Unit of the Criminal Division, Ms. Batts tried 9 cases and served as sole
or chief counsel on all but one during her 5 years with the office.
Ms. Batts currently teaches law at Fordham University in New York City, where
she has taught for the past 10 years. During her summers, Ms. Batts works with
the city of New York Corporation Counsel Trial Advocacy Program at Fordham Uni-
versity.
Ms. Batts is an active member of many worthwhile organizations in her commu-
nity and has served on such important committees as the nominating committee of
the New York City Bar Association.
As Ms. Batts advances in her distinguished legal career, she continues to set an
example for all those around her. Mr. Chairman, I am confident that Deborah Batts
will prove worthy of this committee's support. She has the experience necessary to
undertake the tough job of a U.S. District Court Judge with the highest degree of
competence.
Senator METZENBAUM. Our next witness is a man who has told
the world within the last few days that he is going back to the
world of academia, going to leave the U.S. Senate, a long-time good
friend of mine. We are happy to have you with us, Senator Boren.
STATEMENT OF HON. DAVID L. BOREN, A U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator BOREN. Thank you very much, Mr. Chairman. It is a
real pleasure for me to be here this morning to present to you and
to the members of the committee Robert Harlan Henry, who has
been nominated by the President to be a judge of the U.S. Court
of Appeals for the Tenth Circuit.
514
Before I make further remarks, I would like to ask Robert to in-
troduce the many members of his family and friends who are with
him today.
Senator Metzenbaum. Please do.
Mr. Henry. Thank you, Mr. Chairman. I would like to introduce
my wife, Jan Ralls Henry, and my daughter, Rachel, and my son,
Joshua; my stepsons, Scott and Daniel. My father, the late Judge
Lloyd Harlan Henry, could not be here, but my mother, brother,
and sister are here, if they would stand, and my niece, Meghan;
friends, Larry and Jean Lucas, Brooks Richardson, Miles Tolbert,
Pete and Stacia Glavas, and Jack and Lorene Akins.
Thank you, Mr. Chairman.
Senator Metzenbaum. Rachel, do you think your Daddy will
make a good judge?
[Ms. Henry nods affirmatively.] [Laughter.]
Senator Metzenbaum. OK.
Senator BOREN. Let me say, Mr. Chairman, I do not think I could
add anything after the very convincing and credible testimony that
you have just heard. I would say to my friends from Oklahoma who
are here today: you have just seen why Chairman Metzenbaum is
one of the most beloved figures to all the family members in the
U.S. Senate, including my two children to whom he has shown so
much kindness over the years.
Senator Metzenbaum. Thank you.
Senator BOREN. It is a real privilege and a special pleasure for
me to be able to present Robert Henry to you. The friendship be-
tween our two families goes back all the way to our grandparents
who were very close friends, living in a small community together,
where Robert's grandparents were teachers. Of course, I also knew
his late father. Judge Henry, who was an outstanding member of
the bench in Oklahoma, and I had the opportunity to observe Rob-
ert beginning in his elementary school days. And when he was in
high school and I was a college professor at a nearby school in the
town where he grew up, I had the privilege of coaching him in the
youth legislature in which he participated. So our friendship has
been a very strong one and a very special one.
He is one of the most able young people to come from our State
in many, many years. He is currently serving as the dean of the
Oklahoma City University School of Law. He began serving as
dean in 1991. Before that, he was attorney general of the State of
Oklahoma from 1986 to 1991, where he established a wonderful
record and was one of the most respected public officials we have
ever had. His service was recognized by very many different orga-
nizations, including the American Indian Bar Association, which
gave him their special recognition award for fostering positive dia-
log between Native Americans and other Oklahomans during the
time that he was State attorney general.
Before that, he served in the Oklahoma State House of Rep-
resentatives for five terms. The last four times he was reelected in
the best way that you can be reelected — completely without opposi-
tion. His being elected four times to the State legislature without
opposition indicates to you the respect with which the people of his
home community held him.
515
During all of this time, he served as an adjunct professor at
Oklahoma City University and at the University of Tulsa, and from
time to time at Oklahoma Baptist University in his hometown. He
graduated from the University of Oklahoma School of Law and the
University of Oklahoma as an undergraduate with high honors in
political science in 1974.
He was very active nationally when he was attorney general of
the State of Oklahoma. He chaired the Agriculture and Rural Af-
fairs Committee of the National Association of Attorneys General,
he chaired the Constitutional Law Advisory Committee, and he
was vice chair of the Committee on Civil Rights. He has been a
commissioner of the National Conference of Commissioners on Uni-
form State Laws. He was chairman of a special study commission
that considered revision of the Oklahoma State Constitution.
He has been a very ecumenical person. I mentioned that he has
been an adjunct professor at Oklahoma Baptist University. He has
also been past chairman of the board of St. Gregory's College, a
Catholic institution in our State. And he currently serves as presi-
dent of the Oklahoma City Chapter of the National Conference of
Christians and Jews.
He is a person that, through his leadership and through his per-
sonal integrity, has really brought people together and helped to
create a spirit of community in our State. So he brings to this as-
signment and to the bench, a brilliant mind, and a good heart as
well. I think that we are all blessed as a Nation when we have peo-
ple willing to take on this kind of public service who bring with
them that combination of qualities.
So, Mr. Chairman, it is a real privilege for me to be able to
present Robert Henry to you for his testimony later this morning.
Senator Metzenbaum. That is a very strong recommendation.
Senator Boren, and you may be certain the entire committee will
take your recommendation into account as we consider the con-
firmation process.
Senator BOREN. Thank you very much, Mr. Chairman. I might
also mention that Senator Nickles had to be away today, but he
asked that I also convey to you and to the committee his very
strong recommendation for the confirmation of this nominee.
Senator Metzenbaum. Thank you very much.
Senator BoREN. Thank you.
Senator Metzenbaum. Now we have Representative Ron de
Lugo, Congressman Ron de Lugo, Lt. Gov. Derek Hodge, and Jus-
tice Verne Hodge, presiding judge of the Virgin Islands Territorial
Court.
Now, I want to say to all of you that I have discussed this entire
matter with the Judiciary Committee, and no matter how great the
nominee is, I think the Judiciary Committee would like to take a
week down in the Virgin Islands and continue the hearings down
there. [Laughter.]
Please proceed.
STATEMENT OF HON. RON de LUGO, A REPRESENTATIVE IN
CONGRESS FROM THE U.S. VIRGIN ISLANDS
Representative de Lugo. Mr. Chairman, thank you very much
for this warm welcome to the committee, and I want to say that
516
it is a great pleasure to present our nominee to you. I think that
we have a first here. Judge Raymond Finch has been nominated
by three Presidents, and we checked on that, and that has never
happened before. You have had nominees who were nominated by
two Presidents, but this is the first one nominated by three. He is
an outstanding judge and member of our community, and before we
get into the recommendations, may I ask Judge Finch to recognize
some members of his family who are here with him today. We have
quite a number of people up here from the Virgin Islands.
Judge Finch, I think you have some cousins with you.
Judge Finch. Thank you, Congressman de Lugo, Mr. Chairman.
I would like to introduce my cousin from the Virgin Islands, Mrs.
Norman Armstrong, and her daughter, Kyra Armstrong, who is an
attorney with the firm of Howrey & Simon. There are so many peo-
ple here from the Virgin Islands. All I would do at this time is to
say to everyone from the Virgin Islands in the audience to please
stand.
Senator Metzenbaum. I was wondering why we had such great
attendance this morning. Now I know. We are delighted to have
you all here, and I think it is a great testimonial to you, Judge,
that so many came from so far to be with us this morning.
Judge Finch. Thank you, sir.
Representative DE LuGO. It certainly is, Mr. Chairman, because
right now is the biggest day of Carnival in the Virgin Islands, so
they are giving up
Senator Metzenbaum. I am telling you, we ought to adjourn this
hearing and hold it there. [Laughter.]
Representative DE LuGO. Judge Finch has been nominated by
President Carter. It came too late in his administration for the
Senate to act. The same thing happened with the Bush administra-
tion, and now we have the nomination of Judge Finch again be-
cause we want to see him on that bench and so does the President.
Senator METZENBAUM. How many years ago did President Carter
nominate him?
Representative DE LuGO. How many years ago was that?
Judge Finch. I think that was in 1980. Either 1980 or 1982. His
last year in office.
Senator METZENBAUM. That is when there was an aircraft shot
down?
Judge Finch. That is correct. My nomination came immediately
after that aircraft was shot down in the Mideast desert.
Senator Metzenbaum. And then President Reagan also nomi-
nated you?
Judge Finch. President Bush.
Senator Metzenbaum. And what happened to that?
Judge Finch. That nomination came late in his term, and it died
in the committee.
Senator Metzenbaum. You have been to the mountain many
times. [Laughter.]
Representative DE LuGO. There was a little more to it during the
Bush administration, but we will not go into that today. We will
let things ride. There were two nominees put forward, and one
nominee, you know, the Bush administration pushed it quickly,
and our Democratic nominee they did not quite
517
Senator Metzenbaum. Got lost in the shuffle.
Representative DE LuGO. Yes, got lost in the shuffle. You know
how those things are.
So the Clinton administration has taken care of that and gotten
it up here, and I want to say to this committee because the nomi-
nation just got up here a month ago that we greatly appreciate
your moving Judge Finch forward.
Judge Finch is an outstanding candidate, and from 1966 to 1969,
he served with distinction in the U.S. military. He was a first lieu-
tenant when he entered. He attained the rank of captain, and he
was awarded the Army Commendation Medal and the Bronze Star.
In 1976, Judge Finch, a graduate of Howard, was appointed to
the bench of the Virgin Islands municipal court, the same court
with which he had clerked a decade earlier. As a Virgin Islands
territorial court judge for the past 17 years. Judge Raymond Finch
has garnered a well-deserved reputation as a man who possesses
excellent credentials and a wonderful judicial temperament.
Since 1980, he has served as the administrative representative
of the presiding judge in the St. Croix division, and the presiding
judge is with us here today. Judge Hodge, who has come here to
support this candidacy, as is the lieutenant governor. He super-
vised all court personnel, and he coordinated all of the fiscal mat-
ters of that division.
Judge Finch's confirmation would stabilize a court which has en-
dured a prolonged period of transition. Most importantly, as a na-
tive Virgin Islander, Judge Finch is thoroughly knowledgeable in
local customs and conventions and is a highly qualified, highly re-
spected member of our judicial and social communities.
I urge this committee to give Judge Raymond Finch's candidacy
favorable consideration, and I would like to ask that my entire pre-
pared statement be put in the record.
Senator Metzenbaum. Without objection, the entire statement
will be included in the record.
[The prepared statement of Mr. de Lugo follows:]
Prepared Statement of Hon. Ron de Lugo, Virgin Islands, Chairman,
Subcommittee on Insular and International Affairs
Mr. Chairman, members of the Senate Committee on the Judiciary. First, I want
to personally thank Chairman Biden for responding to my handwritten note on
March 28 and moving so expeditiously on the nomination of Judge Rajrmond Finch
to the District Court of the Virgin Islands.
It is with great pleasure that I introduce Judge Finch to the committee today.
With me are the Lieutenant Governor of the Virgin Islands, the Honorable Derek
M. Hodge, and the Presiding Judge of the Territorial Court of the Virgin Islands,
the Honorable Verne A. Hodge.
Both gentlemen know Judge Finch personally and will speak to his career and
his qualifications, and they, too, will recommend this fine nominee to the committee.
As I wrote Chairman Biden last March, the Virgin Islands has had at least one
vacancy on the bench of the District Court since 1987, almost seven years now, and
had two vacancies for nearly three years. The seat for which you are considering
Judge Finch has been unfilled since 1989.
During this entire time, visiting judges from the Third Circuit Court fiUed in.
I want to express my appreciation to those jurists, and particularly Chief Judge
Stanley Brotman, for their hard work and their good work in keeping the system
functioning during those long vacancies.
But visiting judges cannot operate the system properly for such a long period of
time.
Inequities must inevitably occur, as they did when, in cases for example, when
one judge would hear a case and another judge would do the sentencing.
518
The result was a community left confused and with some diminished faith in the
federal court.
The previous administration had real problems filling these two seats on the Vir-
gin Islands federal bench because there simply were not enough qualified Repub-
lican jurists to assume both positions.
After months of work, we reached a compromise with the last administration so
that two candidates acceptable to both political parties wovild be moved in tandem.
But the administration did not adhere to the agreement.
One candidate was moved quickly, but the other was delayed until it was too late
for this committee to act.
As a result, the St. Croix community had to wait another year and a half for the
new administration to make the second nomination.
I sincerely hope we will never have these long vacancies on the bench again.
Today, the nominee first proposed by President Carter in 1980 appears before the
committee.
It is indeed my honor to have the opportunity to familiarize this committee with
a man who is well known to all Virgin Islanders for his judicial accomplishments
and his contributions to our community.
Judge Finch has dedicated nearly thirty years of his career to public service and
a better way of life for the citizens of the Virgin Islands.
Three decades ago, after completing his undergraduate studies at Howard Univer-
sity, Raymond Finch served as a temporary duty marshal for the United States Jus-
tice Department. Upon graduation from Howard University Law School, he spent
two years as a legal assistant to the Judges of the Municipal Court of the Virgin
Islands.
From 1966 to 1969, Judge Finch served with distinction in the United States
Anny — entering as a First Lieutenant and later attaining the rank of Captain. For
his service, Judge Finch was awarded the Army Commendation Medal and the
Bronze Star Medal.
In 1976 Judge Finch was appointed to the bench of the Virgin Islands Municipal
Court — the same coiut for which he had clerked a decade earlier.
As a Virgin Islands Territorial Court Judge for the past seventeen years, Ray-
mond Finch has garnered a well deserved reputation as a man who possesses excel-
lent credentials and judicial temperament.
Since 1980, he has served as the Administrative Representative of the Presiding
Judge in the St. Croix Division, supervising all court personnel and coordinating all
fiscal matters of the division.
Judge Finch's confirmation wovdd stabilize a court which has endured a prolonged
period of transition.
Most importantly, as a native Virgin Islander, Judge Finch is thoroughly knowl-
edgeable in local customs and conventions and is a highly-qualified, highly-respected
member of our judicial and social communities.
I urge this committee to give Judge Raymond Finch's candidacy its favorable con-
sideration.
Mr. Chairman, it is my privilege to introduce to your committee the Honorable
Raymond L. Finch, Judge of the Territorial Court of the Virgin Islands and a nomi-
nee for the District Court of the Virgin Islands.
Mr. DE Lugo. And at this time, may I ask that the Chair recog-
nize the Lieutenant Governor who has journeyed up from the Vir-
gin Islands to support this nomination.
Senator Metzenbaum. Happy to have you with us, Governor. If
you have a short statement, go ahead and proceed.
STATEMENT OF DEREK M. HODGE, LIEUTENANT GOVERNOR,
U.S. VIRGIN ISLANDS
Mr. Hodge. Thank you, Mr. Chairman. Ciood morning.
Mr. Chairman, thank you for this opportunity to attest to this
committee my support of President CHnton's appointment of Judge
Raymond Finch to the U.S. District Court of the Virgin Islands. To-
day's hearing ends a long struggle to advance Judge Finch to the
Federal bench — a struggle that has spanned two decades and the
administrations of more than one U.S. President.
519
I endorse Judge Raymond Finch and heartily urge this commit-
tee to confirm him with dispatch.
I hope that your confidence in him will match mine, because I
know Raymond Finch from three perspectives: I know him for his
brilliant career as a lawyer and his distinguished record as a judge
in our local court. I know him as a fellow Virgin Islander. And I
know him as a lifelong friend with whom I grew up.
The modern political history of the Virgin Islands began at the
end of the 1960's as the territory prepared for the popular election
of its first Governor in November 1970. It was in those years also
that our first native-born Federal judge, Almeric Leander Chris-
tian, was appointed by President Nixon. This brilliant Crucian ju-
rist served his people and his country with historic distinction for
two decades as chief judge, and his presence on the bench served
as an enduring symbol of justice, self-governance, and equality to
all Virgin Islanders — and so it will be with Judge Finch.
After Judge Christian's appointment, the next three appoint-
ments to the second seat on our Federal bench were of individuals
who, although undeniably part of our community, were not natives.
These three men — Judge Warren Young, Judge David O'Brien, and
our current Chief Judge Thomas Moore — each earned their ap-
pointments because they were remarkable practitioners and schol-
ars, because they understood the Virgin Islands and our diverse
population, and because they chose to make our islands their home.
They were Virgin Islanders — not by accident of birth but by
choice.
But for nearly 5 years, since the death of Judge O'Brien, the ter-
ritory has been without its second permanent local judge. Many
visiting Federal judges have filled this void at great cost to the U.S.
Government, and for a few years — ^between Judge O'Brien's death
and Judge Moore's appointment — even the position of chief judge
was held by a visiting Federal jurist, U.S. District Court Judge
Stanley S. Brotman.
Judge Brotman made a great contribution to the Virgin Islands
during that period, especially in the chaotic months after Hurri-
cane Hugo devastated our homeland, and he continues to serve to
this day. We will be forever grateful to Judge Brotman for his com-
mitment and for his understanding in those years of transition and
hardship. And the people of the Virgin Islands are equally appre-
ciative of the scores of Judge Brotman's colleagues who have filled
temporary positions on our district court.
The list of these dedicated men and women is long, and my time,
Mr. Chairman, is short. But with your permission, I would like to
enter their names in the record of this proceeding with the com-
mendation and appreciation of the people of the U.S. Virgin Is-
lands.
[The list follows:]
Visiting U.S. District Court Judges to the U.S. Virgin Islands, 1989-94
Stanley S. Brotman— Visiting Chief Judge
Daniel H. Huyett, Jr., Edward N. Cahn, Joseph J. Faman, Ann E. Thompson,
Clifford S. Green, Joseph L. McGlynn, Alfred M. Wolin, Lawrence W. Pierce, Ben-
jamin F. Gibson, James L. Watson, Barbara Hackett, Leland Nielsen, Mark
Constantino, Robert L. Carter, Wendell A. Miles, Frank Kaufman, James T. Giles,
520
John P. FuUam, Richard P. Conaboy, Aubrey E. Robinson, Robert F. Peckham, Ray-
mond Broderick, William P. Gray, Morton I. Greenburg, Robert J. Kelleher, and
Constance B. Motley.
Mr. Hodge. Now comes the nomination of Judge Finch — and
none too soon.
Mr. Chairman, it is painful for me to acknowledge that our beau-
tiful American paradise has not been immune to the same prob-
lems of crime that afflict every U.S. locality. Although the fre-
quency of this activity is no greater than any other American town
with its share of unemployment, illicit drugs, recessionary econ-
omy, idle youth, and shrinking public resources, every citizen feels
personally the impact of every criminal incident because we are so
small — ^three tiny islands, 140 square n^iles, 100,000 residents.
But we are resolved to eliminate this scourge, and we have taken
measures in the public and private sectors to win the battle.
The criminal justice system is at the vanguard of this struggle,
and as an integral part of that structure. Judge Finch's experiences
as a deputy U.S. marshal, as an attorney, as a member of our Law
Enforcement Planning Commission, as director of our Boys Club,
as a judge of the territorial court, and as an occasional judge of the
U.S. district court by special designation all speak eloquently to his
fitness, his temperament, and his place in the Virgin Islands com-
munity.
Mr. Chairman, each of the Virgin Islands celebrates a cultural
festival each year. On St. John, it is celebrated on the days leading
to July 3 and 4, our local Emancipation Day and the U.S. Inde-
pendence Day, respectively. On St. Croix, it is celebrated between
Christmas and Three Kings' Day. And as Congressman de Lugo,
who revived the tradition 40 years ago, can tell you and has just
said, on St. Thomas, Carnival is being celebrated literally as we
speak.
In our rich culture, these celebrations recall the past, celebrate
the present, and give us all hope for the future. From all walks of
life, from all backgrounds, from many places of origin, our multira-
cial, multicultural population celebrates at once our diversity and
our commonality; our "Caribbean-ness" and our "American-ness";
our lifestyle and life itself. Most of all, these unique celebrations
are the quintessential expressions of freedom — individual emanci-
pation and the institutional freedoms and human rights only a
country like ours can offer.
And it is freedom I speak of when I ask you, Mr. Chairman, to
give us this able jurist; give us this native son of our soil; give us
Raymond Finch for our district court.
Such a favorable decision will reaffirm our pride as Americans
and our participation in the greatest democracy in history, and it
will reaffirm our pride and identity as self-governing, self-judging
Virgin Islanders.
Thank you very much, Mr. Chairman.
Senator Metzenbaum. Thank you very much. Governor.
Justice Hodge, do you care to msike a statement?
521
STATEMENT OF HON. VERNE HODGE, PRESIDING JUDGE,
VIRGIN ISLANDS TERRITORIAL COURT
Judge Hodge. Mr. Chairman, I can assure you mine will be
much briefer than that.
Mr. Chairman, on behalf of the judges and staff of the territorial
court, I am pleased to take this opportunity to recommend that
your committee approve the nomination of one of our colleagues.
Judge Raymond Finch, to the position of judge of the district court
of the U.S. Virgin Islands.
Judge Finch and I have served together on the territorial court
bench since 1977, and I can, therefore, attest to his excellent per-
formance during those 17 years. As a presiding judge of the court,
I know that we will all regret losing his services if he is confirmed.
But the appointment of native Virgin Islanders to Federal service
in the Virgin Islands is such an imperative at this time that we
strongly support his selection by President Clinton.
While Judge Finch's qualifications by training, experience, and
character are well documented in his file, I think you should know
that he is a quiet, observant individual whose calm demeanor is
complemented by his firm and decisive decisionmaking, thereby
justifying my reference to him as one who wields an iron fist in a
velvet glove.
Accordingly, we recommend his confirmation, and, Mr. Chair-
man, I have an even briefer statement that Governor Farrelly
asked me to read briefly to you, and I have a copy of his statement.
I would like to submit it to the committee for the record. He briefly
states as follows:
I wish to join many Virgin Islanders in my support of the nomination of Terri-
torial Court Judge Raymond Finch to become the Federal District Court Judge for
the District of the Virgin Islands. Because this position has been vacant since 1989,
I am particularly pleased by your prompt scheduling of committee hearings on his
nomination. I have had the privilege of nominating Judge Finch as a judge of our
Territorial Court, and I am pleased to report that he has served in that position
with distinction.
It is beyond doubt, therefore, that he will continue to render outstanding service
to the people of the Virgin Islands as a judge of the district court. Accordingly, I
recommend that Judge Finch's nomination be given speedy confirmation by your
committee.
And this is signed by Alexander A. Farrelly, Ciovernor of the U.S.
Virgin Islands.
Thank you very much, Mr. Chairman.
Senator Metzenbaum. Thank you very much, Judge Hodge.
We will proceed in order. Judge Finch, if you would be good
enough, we will call you back at a little bit later time. And I think
we will now proceed to the nomination of Robert Henry, nominee
to be U.S. Circuit Judge for the Tenth Circuit.
This is a very difficult job for me, and so I thought that maybe
Rachel and Josh might like to come up here and help me in this
confirmation process. Rachel and Josh, would you like to come up
here and sit while your Daddy is sitting over there?
If they do not want to, don't embarrass them. [Laughter.]
Mr. Henry. We think, Mr. Chairman, that my daughter will. She
left momentarily.
Senator Metzenbaum. OK.
522
Mr. Henry. One hesitates to give her another chance to say any-
thing, but she might want to do that.
Senator Metzenbaum. Mr. Finch, do you solemnly swear to tell
the truth, the whole truth, and nothing but the truth, so help you
God?
Mr. Finch. I do.
Senator Metzenbaum. Thank you.
Do you care to make an opening statement?
Mr. Henry. No, Mr. Chairman, I do not.
Senator METZENBAUM. Dean Henry, if you are confirmed as an
appellate judge, it is not at all unlikely that at some point you may
be faced with applying a Supreme Court precedent with which you
do not personally agree? Would you consider yourself bound by
such a precedent?
TESTIMONY OF ROBERT HENRY, OKLAHOMA CITY, OK, TO BE
U.S. CIRCUIT JUDGE FOR THE TENTH CIRCUIT
Mr. Henry. I believe, upon taking the oath, I am bound to follow
precedent of the Supreme Court of the United States.
Senator METZENBAUM. Your questionnaire indicates that you
have served as a State representative with the Oklahoma House of
Representatives, as a litigator in private practice, as the Attorney
General of Oklahoma, and as the dean and professor of law at the
Oklahoma City University School of Law. In what way do you be-
lieve that your legislative, litigation, and academic experiences
have prepared you for a position on the tenth circuit.
Mr. Henry. Mr. Chairman, there are a variety of and great dif-
ferent numbers and kinds of cases that come before the circuit
court. My experience in the legal profession has been broad. I have
been privileged to serve in the State legislature as an executive.
Service in those branches has taught me and helped me under-
stand the separation of powers, and I believe that my broad back-
ground with the constraint I would feel from understanding how
the other branches operate, I believe that would help me very
much should I be privileged to be confirmed.
Senator METZENBAUM. Rachel, would you like to come up here
and help me in this hearing, or would you rather sit where you are,
dear?
[Pause.]
Senator Metzenbaum. If you have any questions for your Dad,
you can ask those, too.
questioning by senator metzenbaum
Since their inception, the Federal Sentencing Guidelines devel-
oped by the Sentencing Commission have been the subject of de-
bate, largely by reason of concerns about mandatory minimum sen-
tences. What do you see as the pros and cons of mandatory sen-
tencing?
Mr. Henry. Well, as a judge, I would be obligated to follow the
sentencing guidelines, and the debate has been a lengthy one. On
the one hand, we have sought as a society to promote certainty,
equality of sentencing. On the other hand, judges sometimes feel
the need to look at particular circumstances where they might
523
want to make an adjustment based on one thing or another. That
debate continues to rage.
I am happy that this committee, Mr. Chairman, has had inter-
action with the Federal judiciary to continue to discuss and mon-
itor these developments, and I would have no problem following the
guidelines.
Senator Metzenbaum. What would you do if you were faced with
a situation where you felt that the sentencing guidelines were just
too harsh?
Mr. Henry. Senator, I would be obligated to follow those guide-
lines.
Senator Metzenbaum. Your questionnaire states that as Attor-
ney General of Oklahoma, you served as Chair of the Oklahoma
Constitution Revision Study Commission. I understand that after
2 years of review, the panel proposed a complete redrafting of the
State Constitution.
Would you care to discuss some of the significant changes in the
Oklahoma Constitution that the commission proposed and the rea-
sons behind those suggestions?
Mr. Henry. Well, Mr. Chairman, Oklahoma's Constitution was a
product of the progressive era around the turn of the century, and
at the time it was written, it was the longest constitution ever
penned by the hand of man. It included such wonderful things as
the flash point of kerosene, and
Senator Metzenbaum. The what?
Mr. Henry [continuing]. The flash point of kerosene, and regula-
tions for railroad passenger fares were set by constitution. Public
officials were required by constitution to swear numerous oaths
that they would not accept free rides on the railroads.
Not meaning to besmirch William Jennings Bryan, who was a
great man, he praised that constitution as being the greatest con-
stitution ever struck off by the hand of man, greater than the Con-
stitution of the United States.
Well, Mr. Chairman, it was not. It was too long. It was too in-
flexible. And we sought to vastly shorten it and mirror the majesty
and flexibility of the U.S. Constitution.
Senator METZENBAUM. I understand you were recently named to
a new uniform committee to review the uniform evidence code to
conform with Federal changes and to address new technologies not
adequately handled by either the current Federal or uniform act.
Would you be good enough to explain what new technologies this
committee addressed and whether your experience has provided
you with any insights concerning the challenges that Federal
judges face?
Mr. Henry. Mr. Chairman, the committee has not met yet. It
will meet in Chicago at the Uniform Law Conference in July. The
committee is concerned with several things that this committee has
dealt with: videotaped depositions of witnesses, television, those
sorts of things. And it seeks to suggest to the States that the States
work together with the Federal Rules of Evidence so that we can,
where uniformity is desirable, try to mirror the good work of the
Federal Rules of Evidence.
Senator Metzenbaum. Is there anything else that you would like
to add. Dean Henry?
524
Mr. Henry. No, Mr. Chairman.
Senator Metzenbaum. Do you solemnly swear that if you are
confirmed as a circuit court of appeals judge that no matter how
difficult a day is on the bench that you will be kind, considerate,
and loving to Joshua and Rachel? [Laughter.]
Mr. Henry. I will do everything in my power to do that.
Senator Metzenbaum. Do you have any questions that you want
to ask?
She does not. OK. Thank you for coming and helping me.
Mr. Henry. Thank you, Mr. Chairman.
Senator Metzenbaum. Professor Batts, would you be good
enough to come to the witness table?
Do you solemnly swear to tell the truth, the whole truth, and
nothing but the truth, so help you God?
Ms. Batts. I do.
Senator Metzenbaum. Do you have any little ones with you that
you want
Ms. Batts. Mr. Chairman, I am afraid to ask them to join you
up there. [Laughter.]
Senator Metzenbaum. Whatever your pleasure. We would be
happy to have them if you wanted them.
Do you have an opening statement. Professor?
TESTIMONY OF DEBORAH BATTS, NEW YORK, NY, TO BE U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW
YORK
Ms. Batts. Mr. Chairman, the only opening statement that I
would like to make is that my twin sister, Diane Batts Morrow,
and her husband, John Howard Morrow, and their children, Kieran
and Evan Batts Morrow, were not able to be here today, but they
are here with me in spirit. Thank you.
QUESTIONING BY SENATOR METZENBAUM
Senator METZENBAUM. We miss them, and we are glad to know
that they are here with you in spirit. I am sure that had they been
able to, they would have been pleased to be here on this very mo-
mentous occasion.
You have been a law school professor at Fordham University
since 1984. Why do you want to switch gears at this time?
Wouldn't the life of being a professor be more relaxing and com-
fortable?
Ms. Batts. Without question, Mr. Chairman, the life of a profes-
sor, I think, has been a delightful one. I have had many wonderful
experiences and have taught literally thousands of students
throughout the years.
I do feel, however, that the honor and the challenge of being a
Federal district court judge would make leaving the life of ease of
a professor definitely worthwhile.
Senator Metzenbaum. Professor Batts, tell us something of your
background. I notice you went to Radcliffe. How were you able to
go to Radcliffe? Was it a scholarship? Was your family able to pro-
vide?
Ms. Batts. I was extremely lucky. My father, who unfortunately
passed away in 1992 and, therefore, obviously is not able to be with
525
me today except also in spirit, was a wonderful man and a good
provider for his family. He was a doctor, and, in fact, at the time
I started college, he became a professor of obstetrics and gyne-
cology, so that I was extremely lucky to have had the benefits of
a loving father and mother, and my sisters as well.
Senator Metzenbaum. Your Dad passed away in 1992?
Ms. Batts. Yes.
Senator Metzenbaum. It is a sad commentary that he could not
be with you on such a momentous occasion.
You also served as an assistant U.S. attorney for the Southern
District of New York for years, and I think you took that position
after you had been with Cravath, Swaine & Moore for 6 years.
How did you happen to make the change from the private sector
to the public sector, and I would guess with some financial sacrifice
as well?
Ms. Batts. Mr. Chairman, I think that I have had an extremely
fortunate and lucky professional career. Every time that I have
made a switch in career, it has always been at a point when I have
truly enjoyed what I was doing before I made the switeh. I think,
though, that you have wisely caught on that as my job satisfaction
increased, my financial remuneration kept going down, so that I
have a downwardly mobile financial spiral. This is true.
Senator METZENBAUM. When you were in the U.S. district attor-
ney's office, what kind of work did you do?
Ms. Batts. I was in the criminal division, Mr. Chairman, and I
had a variety of cases. I dealt with some international art theft
cases, armed bank robbery, bank embezzlement, tax evasion, immi-
gration cases, a wide variety. I did not, however, have much experi-
ence, if any, in narcotics or in major crimes, that is, organized
crime.
Senator Metzenbaum. You say you have not had experience?
Ms. Batts. I have not.
*^enator Metzenbaum. You have written a number of public pub-
lications and served on a number of committees that address devel-
oping areas of family law such as family leave. Would you give us
some idea of the thrust of those articles, please?
Ms. Batts. Mr. Chairman, the work that I did involving family
leave particularly was work that I did as a member of the Sex and
Law Committee of the Bar Association of the City of New York.
And New York State at that time had proposed some legislation
dealing with family leave, and our committee — and I was one of the
members of the subcommittee — worked on trying to make com-
ments and helpful points and amendments to the suggested legisla-
tion by New York State.
I have written in the area as well. I wrote an article dealing with
whether or not we should have a right to inheritance for children.
I believe also that I still mean what I said in the first footnote of
that article, which is that my parents should take that article very
seriously because I did recommend that children should have a
right to inheritance. And I also said that my children should not
take it very seriously. [Laughter.]
Senator Metzenbaum. If you are confirmed as a Federal district
court judge, which I assume you will be, at some point you may be
faced with applying a second circuit court precedent with which
526
you do not personally agree. Would you consider yourself bound by
such a precedent?
Ms. Batts. Absolutely, Mr. Chairman. As a Federal district court
judge in the Southern District of New York, I would be absolutely
bound by second circuit precedent.
Senator Metzenbaum. Of course, you may also be faced with
cases involving issues on which the second circuit has not ruled.
Can you give us any idea of the perspective that you would bring
to a case in which there was no precedent, no Supreme Court deci-
sion, a matter of original issue, and how you might approach it as
a jurist?
Ms. Batts. Mr. Chairman, what I would attempt to do is to find
the nearest analogous situation where there is precedent and to be
guided by that to see if that could help me in terms of figuring out
where to go on that new issue. But I would certainly use precedent
as a basis for attempting to see where that precedent would lead.
Senator Metzenbaum. Rule 11 of the Federal Rules of Civil Pro-
cedure allows judges to impose sanctions against lawyers or parties
who file frivolous lawsuits. Recently, there has been much debate
over the courts' increased willingness to punish litigants under rule
11. Some lawyers argue that the rule is being applied to chill pur-
suit of creative arguments in developing areas of the law such as
civil rights.
Given your experience as a litigator whose practice has become
more defense-oriented over the past 2 years, what do you think of
these concerns, and how might you respond to them in the court-
room?
Ms. Batts. Mr. Chairman, I think that the debate is well rep-
resented on both sides. I can see, indeed, the need initially which
created rule 11, where people felt that the courts were being inun-
dated with frivolous lawsuits, and I believe that there are cases
where, indeed, the application of rule 11 sanctions are appropriate.
But in each instance, I think that the best way of dealing with it
would be looking at the particular facts before me. I think that, in-
deed, yes, there could be times when there was abuse of rule 11
and other times when application of rule 11 is totally appropriate.
But each case would be the basis upon which to make that deter-
mination.
Senator Metzenbaum. I have become disturbed about the appli-
cation of rule 11 because I could see where, in years past, and
maybe even now, some civil rights cases, human rights cases,
rights of minorities of all kinds, might have been looked upon
askance by the court, and that the lawyers practicing in those
areas might very well have felt constrained as far as going forward
if they were going to suffer a penalty.
Do you have any thoughts on that subject?
Ms. Batts. Mr. Chairman, I think that there is a distinction be-
tween novel and frivolous, and I believe that if rule 11 is appro-
priately applied, it would restrict or inhibit frivolous lawsuits as
opposed to individuals seeking redress for wrongs through the
court which may not have been brought before. So hopefully, jurists
are able to make that distinction, and I would hope that I would
be able to do so as well.
527
Senator Metzenbaum. I noticed as I glanced through the cases
in which you were involved, it appears that you were on the de-
fense side in the main. Is that the case?
Ms. Batts. No, Mr. Chairman. In active cases, I was the assist-
ant U.S. attorney who was prosecuting the case on behalf of the
U.S. Government.
Senator METZENBAUM. I see. OK. Thank you very much, and I
wish you well in your new endeavor.
Ms. Batts. Thank you very much, Mr. Chairman.
Senator METZENBAUM. Our next witness is Judge Raymond
Finch.
Judge, do you solemnly swear to tell the truth, the whole truth
and nothing but the truth, so help you God?
Judge Finch. I swear.
Senator METZENBAUM. Do you have any young members of the
family that you would like to have help me up here?
Judge Finch. No, I do not. Senator.
Senator METZENBAUM. Judge Finch, do you have an opening
statement that you care to make?
TESTIMONY OF RAYMOND FINCH, KINGSHILL, ST. CROIX, VI,
TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF THE VIR-
GIN ISLANDS
Judge Finch. Not per se, Mr. Chairman, except to express my
deep appreciation for the honor of being here today.
QUESTIONING BY SENATOR METZENBAUM
Senator Metzenbaum. Let me ask you a question. Is the former
Senator from Massachusetts with whom I served, is he in the Vir-
gin Islands these days or is he in the States? I am speaking of
Judge Finch. Is that Edward Brooke?
Senator Metzenbaum. Ed Brooke, yes.
Judge Finch. No; he is not in the Virgin Islands these days. Sen-
ator.
Senator Metzenbaum. I see.
Judge Finch. I think he might be on the island of St. Maarten.
Senator Metzenbaum. There has been a great deal of attention
paid to the increased caseloads of Federal courts and the resulting
problem of docket backlogs. Newspaper accounts state that 17.6
percent of the civil cases in the Virgin Islands pend for 3 or more
years and that few jurisdictions have a higher backlog.
Now, a backlog, as you well know, has an adverse effect on the
litigants before the court who have been forced to suffer at least
some delay in the resolution of their claims.
Can you tell us what you know about the reason for the backlog
which is so high in the Virgin Islands?
Judge Finch. The primary reason for that backlog, Mr. Chair-
man, is because of the fact that we do not have a permanent U.S.
district court judge assigned to the Virgin Islands, and a result of
that, only criminal cases are heard in the U.S. district court. Civil
cases have not been processed since 1989.
Senator Metzenbaum. That is a real travesty. If confirmed, what
steps will you take to ensure that the docket is caught up as quick-
ly as possible, being both fair and reasonable?
528
Judge Finch. Mr. Chairman, I believe firmly that a hands-on ap-
proach by the judge, who works very closely with the clerk of the
court and is deeply involved in the processing of the cases, helps
to a large extent to move cases along. I do not believe that a judge
should sit back in his chambers and await for cases to flow to him.
I believe that he should be actively involved in the processing of
those cases. I have done that in the past, and it has worked.
Senator Metzenbaum. Would you make a special effort to bring
that backlog of cases up to a current period?
Judge Finch. If I am confirmed, Mr. Chairman, I shall make
that special effort.
Senator Metzenbaum. If confirmed, at some point you could be
faced with applying a decision of the court of appeals for the third
circuit with which you disagree. Would you have any difficulty ap-
plying and enforcing precedents with which you did not agree?
Judge Finch. No, Mr. Chairman. I have absolutely no problems
in applying precedent.
Senator Metzenbaum. Is there any special area of the law.
Judge Finch, which has been of particular interest to you, whether
it is a Federal law or a Virgin Island law? Is there any particular
area of concern or interest for you?
Judge Finch. Yes, Mr. Chairman. I am very concerned with juve-
nile laws, the structure of the domestic relations court, and the
process of juvenile cases in that court. In our time, we are now ex-
periencing an influx of minors in the courtroom for serious and not-
so-serious offenses. And I believe that it is time that the juvenile
courts be properly staffed, and not only with support personnel but
with judges so as to give minors the proper guidance and direction
which they need from the judiciary.
Senator Metzenbaum. Do the district courts of the Virgin Is-
lands have different kinds of cases than you might find in the
States?
Judge Finch. That is so. It was more so up until January of this
year. The U.S. District Court of the Virgin Islands hears criminal
cases to a larger extent than the U.S. district courts in the U.S.
mainland. As of January of this year, a large part of the local
criminal caseload was shifted to the territorial court. So now that
is not such a big problem in the U.S. district, but still, nonetheless,
there are those cases, those criminal cases which the district court
may still hear.
Senator Metzenbaum. The committee has heard from many indi-
viduals who support the appointment of a native Virgin Islander to
this judicial vacancy. I understand from your questionnaire that
you were bom in the Virgin Islands, and after completing law
school in the United States at Howard University, you returned to
clerk for the Virgin Islands Municipal Court and then went on to
practice with the law firm of Hodge, Sheen, Finch & Ross.
How do you feel that your background and experiences in private
practice and on the bench in the Virgin Islands have prepared you
for this position?
Judge Finch. Well, my experience in private practice was very
general, and I did that general practice for a number of years. And
in the municipal court and the territorial court, my experience has
been broad-based. I have done all kinds of cases, from traffic court
529
through the domestic relations type cases, divorces, probates. I
have done criminal cases, admiralty cases. So with that broad-
based experience, I think I can bring a wealth of experience to the
U.S. court.
Senator Metzenbaum. In evaluating candidates for the bench,
this committee has traditionally looked not only at the nominee's
credentials and professional background, but also at the question
of temperament. I have to say that good temperament and de-
meanor are characteristics which, I think everyone would agree,
are some of the most important qualities needed in a judge.
I understand that since 1979 you have served on the Judicial
Ethics Committee of the American Judges Association. Your ques-
tionnaire states that this committee reviews cases involving allega-
tions of past judicial misconduct. Given your background and prior
experience on this committee, would you tell us about the role and
significance of judicial temperament and indicate what elements of
this temperament you consider most important?
Judge Finch. One of the factors in temperament that I consider
to be most important is patience, and courtesy. Particularly in the
Virgin Islands where the tradition has been to allow litigants, not-
withstanding the fact that they are represented by counsel, to ad-
dress the court. And I think that I have exhibited that degree of
patience over the years that has stood me well.
I pride myself in not being result-oriented, and that comes, of
course, from years on the bench, and it comes from being patient
and listening to all of the evidence that flows from the litigants.
Senator Metzenbaum. Thank you very much. Judge Finch, and
I wish you well. I feel certain that the committee will look favor-
ably on your nomination.
Judge Finch. Thank you, Mr. Chairman.
Senator Metzenbaum. Our last witness is of particular interest
and concern to me since I was one of those two Senators who nomi-
nated Dean Solomon Oliver for this position. So I am very happy
to see you here now.
I see some young members of your family here. Dean Oliver,
would you care to introduce me to them and let me invite them to
join me up here if they would like to.
Mr. Oliver. Yes, Mr. Chairman, I would like to introduce my
family. Senator Glenn did introduce certain members of my family,
and he had the others stand. But because my family is so impor-
tant to me and has been over the years, if you do not mind, I would
like to take a little bit of time to introduce those who are here.
Senator Metzenbaum. Take as much time as you would like.
Mr. Oliver. You already met my wife, Louisa, but I would like
them to stand, and they can sit down immediately, if they would
like, after I call their names: My wife, Louisa; my son, Solomon Mi-
chael Oliver, who is a freshman at Amherst College; my son, Jona-
than Douglas Oliver, who is in his last year of high school and is
trjdng to make up his mind from some good choices right now. My
father. Rev. Solomon Oliver, Sr., and my stepmother. Queen Oliver;
my sister, Mary O. White; my sister, Eunice O. Boswell; my broth-
er-in-law, Alexander Boswell; my sister, Barbara O. Richards, and
her son, Timothy; my sister, Diane O. Gibson, and her sons, John
Gibson and Phillip Gibson, and her daughter, Sallee Nicole; my
530
brother, Daniel Oliver; my brother, Nathan Oliver, Sr., and his
sons, Nathan Oliver, Jr., and William Leigh Oliver; my niece, Anita
Winfield, and her children, Nia Winfield and Cameron Winfield.
I would like to say that I am sorry that my other three brothers
could not be here. They wanted to be, but they had obligations
which kept them from being here: my brother, Leroy, my oldest
brother; my brother, Paul, who is a lawyer and an excellent one in
his own right; and my brother, David.
I am also sad that my mother, Willie Lee Oliver, could not be
here. She was so instrumental in raising all of us and giving us,
along with my father, obviously, Reverend Oliver, their most ster-
ling examples to us all.
I have two CSU Cleveland-Marshall College of Law — that is
where I teach — colleagues here. They surprised me this morning:
Assistant Dean Louise Dempsey and Administrative Assistant Lou-
ise Mooney. They flew down early this morning about 6 o'clock, and
I just wanted to recognize them.
Thank you very much for giving me the opportunity to introduce
them.
Senator Metzenbaum. Thank you. Now, I am going to say to all
of the young people that you introduced — that goes up to about 21,
I guess, including your 2 sons — you are all welcome to come up
here and sit and listen during this hearing. If any of you wants to
come up, just come right on up.
There is kind of a symbolism, Mr. Oliver, in bringing the chil-
dren up, because in the last analysis, so much of what we do re-
lates to the future of their lives, and so much of what you would
be doing on the court relates to children and the kind of life we all
live. Some of us will pass on, but they have a whole future ahead
of them, and I am very glad that you are here.
Do you understand what this is? We are deciding, the seven of
us, we are going to have to decide if that man, who is related to
you, Mr. Solomon Oliver, whether or not he should be a judge. So
when he gets done speaking, I am going to have a vote. So you pay
close attention to what is said. OK? All right. And no speaking out
during the questioning. I will do the questioning, and you will do
the voting when we get done.
Mr. Oliver, do you solemnly swear to tell the truth, the whole
truth, and nothing but the truth, so help you God?
Mr. Oliver. I do.
Senator Metzenbaum. Do you have an opening statement?
Mr. Oliver. No; I do not, Mr. Chairman.
questioning by senator metzenbaum
Senator Metzenbaum. You have served as a law clerk to a man
who is unquestionably one of the most distinguish ed Federal appel-
late judges this Nation has ever had and, in the opinion of this
Senator, should have been on the Supreme Court. You have also
served as an assistant U.S. attorney and as a law professor.
How have these experiences prepared you to be a Federal district
court judge?
531
TESTIMONY OF SOLOMON OLIVER, JR., CLEVELAND HEIGHTS,
OH, TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN DIS-
TRICT OF OHIO
Mr. Oliver. Each one of those experiences you mentioned, Mr.
Chairman, I think has prepared me to be a Federal judge, has con-
tributed to my preparation. I think clerking for Judge William H.
Hastie, who, as you say, was a great judge — he was the first Afri-
can-American judge to sit on the Federal court — was a wonderful
experience.
Senator Metzenbaum. He was the first African-American to sit
as a Federal judge in this country's history?
Mr. Oliver. That is correct.
Senator Metzenbaum. I did not know that.
Mr. Oliver. Initially, he sat in the Virgin Islands in the terri-
torial court, but he was the first article III judge as well. He was
appointed by President Truman in 1949 to the third circuit court
of appeals. He was a man who was well trained in the law, who
had a distinguished background when he came to the court, a won-
derful temperament, and working under him, I not only learned
what clerks learn about the full range of the kinds of legal issues
that come before the court, but I think I learned how one ought to
behave and how one ought to conduct oneself from one of the top
people who served as a Federal judge. So that was a wonderful ex-
perience.
I worked in the U.S. attorney's office, and, of course, as you
know, the United States is the litigant that comes before the Fed-
eral court more often than any other. And so I got to work on a
large range of cases there. I also was
Senator Metzenbaum. Under who?
Mr. Oliver. In the U.S. attorney's office in Cleveland when
President Carter was the President of the United States, Jim Wil-
liams was the U.S. attorney in our district. I was chief of the civil
division for almost 4 years. I was chief of appellate litigation. And
being chief of appellate litigation, I was in charge of both civil and
criminal appeals that went before the sixth circuit. So I think that
experience has contributed to my knowledge of Federal cases, and
I think that has been a wonderful experience.
I also have been teaching for the last 12 years at Cleveland-Mar-
shall College of Law, and I teach courses that involve litigation in
the Federal courts. I teach a course on Federal jurisdiction. I teach
a course on Federal civil procedure and a course on child advocacy.
These are all courses, I think, which have made me very aware of
the Federal court system, the kinds of issues raised and the com-
plexities that are involved in the cases that come before the court.
Senator Metzenbaum. You indicated you have given legal advice
to disadvantaged clients on a pro bono basis and that you have
served on the board of a fair housing organization and the board
of FHC Housing Corp. which backs loans made by banks for home
repairs to persons who have poor credit.
What role, if any, do you think a judge has in ensuring that the
poor and disadvantaged have access to the legal system?
Mr. Oliver. I think the judge and the legal profession itself has
an obligation, both have an obligation to ensure the disadvantaged
have representation. But as a judge, I think that especially in the
532
criminal context, there are certain laws which require that criminal
defendants be afforded counsel. And I would try to make sure in
choosing counsel, for example, for indigents that they have com-
petent counsel. I think, though, that in our profession a judge can
set the tone by serving with other members of the bar to create a
culture where lawyers feel that it is their obligation to give to those
who cannot afford. I think we have got to do that in our profession
if the profession is to work properly.
Not all persons can afford a lawyer, and yet our legal system op-
erates on the basis of having lawyers. And so I would make it very
clear in any capacity that I would have, as a judge and otherwise,
that lawyers ought to give something back, that they ought to feel
some duty to help those who are disadvantaged.
Senator Metzenbaum. Mr. Oliver, I, just as a member of the
public and not necessarily as a Senator, have had a great concern
about the number of cases where I hear some individual commits
a heinous crime or maybe a crime of securities fraud, bank fraud,
something of the kind, well represented by counsel, winds up being
found guilty or pleads guilty, gets 1 year or 3 years or 5 years, the
sentence is suspended, and then is given 200 hours of community
service, winds up really doing very little of that. If he did, it really
did not make that much difference.
I have concluded that it is a terrible kind of justice. You only get
this kind of arrangement if you are represented by high-priced law-
yers, normally. And I am just wondering about your own reaction.
You will be dealing with some criminal cases as well as civil cases.
What do you think of this idea of so many suspended sentences?
Sometimes I read articles in the paper about some of the judges
suspending sentences, and it is revolting to me. It is repulsive.
You are going to be a judge. Give me your reaction to this treat-
ment of defendants who have either pled guilty or been found
guilty.
Mr. Oliver. Senator, I could only say that if I am appointed to
be a Federal judge, I will try to be equal in my treatment of the
defendants who come before the court, that I will try to be even-
handed in the way that I participate and rule on sentencing issues
and other issues. That is really I think all I could say, is that you
could trust that I would be fair across the board with all kinds of
defendants from all kinds of backgrounds and all kinds of cases.
That would be my aim.
Senator METZENBAUM. Would you have any difficulty applying or
enforcing precedents set by the sixth circuit even in those cases
which you disagree with the conclusion of the sixth circuit?
Mr. Oliver. I would have no difficulty. As a district judge, it
would be my duty and responsibility to apply the law as it exists,
and that law would include the laws interpreted by the sixth cir-
cuit, and so I would have no difficulty doing that, even in the face
of some disagreement personally.
Senator METZENBAUM. Congress is contemplating legislation
aimed at reducing pervasive overcrowding in Federal courts by al-
lowing Federal judges to assign some of their smaller cases to
court-appointed arbitrators. Some suggest that settling appropriate
cases early would relieve some of the docket backlog. While that
533
may be true, some litigants would prefer their day in court even
more than a favorable settlement.
I know you have served on the Civil Justice Reform Act Advisory
Group for the Northern District of Ohio since 1991, and you have
also served as a member of a panel of Federal court mediators and
arbitrators appointed by the judges of the Northern District of
Ohio.
Given your experience, what role do you think arbitration should
have in Federal court, and what role, if any, do you intend to play
in the settlement process?
Mr. Oliver. As you pointed out. Senator, I have been on the
Civil Justice Reform Act Advisory Group in the Northern District
of Ohio, and that group recommended arbitration, mediation, and
early neutral evaluation as ways to help reduce the backlog of
cases in that district. We also suggested some other things.
I think arbitration and mediation and other alternate dispute
resolution devices can be very helpful in alleviating backlog and
delay in the Federal system. I do not think it in any way could be
or should be mandatory. I think if a party decides they really want
their day in court, they should have it.
However, I think a lot of parties now are coming to realize the
benefits, with some explanation, the benefits of having these de-
vices available. If I were confirmed, appointed as a judge, I would
try to make use of those devices. As you say, I have been already
involved by volunteering my time in our district court hearing some
of those cases as a mediator, as an early neutral evaluator, to help
move along some of those cases, and they have settled. So as a
judge, I will be trying to use the lawyers who do work for free in
the Northern District of Ohio to help evaluate some of those cases
and move them along.
In terms of my role in settlement as a judge, I would try to facili-
tate it. Again, I would not strong-arm the parties, but I would meet
with them early, and I would meet with them often, and I would
try to encourage them to — try to help them do a realistic evaluation
of their case and to see if we can get a meeting of the minds. Be-
tween 90 and 95 percent of the cases in the Federal courts do set-
tle. They are settling too late in some instances. They should settle
much earlier. And I would be involved in trying to facilitate that.
Senator Metzenbaum. Thank you very much, Mr. Oliver.
Do you think that secrecy orders are sometimes overused in seal-
ing cases, particularly those involving public health and safety?
Mr. Oliver. I cannot really say whether they are overused or
not. Senator, but I would say that it is important to balance kind
of the right of citizens to know. If we are going to live in a demo-
cratic society and people are going to make informed judgments, we
are going to have to be as open as we can.
However, I do realize, based on then representing parties myself
before the court in very delicate situations, that there are some cir-
cumstances under which there is a need to seal. So I could not say
without the facts and circumstsinces whether a particular situation
would be appropriate, but I would be mindful of the need to bal-
ance the interests of the litigants in not revealing certain propri-
etary information with that of the public and their interest in
knowing and their right to know what is going on.
534
Senator Metzenbaum. Thank you very much, Mr. OUver. Now
the final decision is about to be made.
Do you think that he should become a judge?
Nathan Oliver, Jr. Yes.
Senator Metzenbaum. Yes. How do you feel?
William Leigh Oliver. I think he should be a judge.
Senator Metzenbaum. Do you think he would be a good judge?
OK.
John Oliver Gibson. Yes.
Senator Metzenbaum. Yes? OK. How is your vote?
Philip Gibson. Yes.
Senator Metzenbaum. Can't hear you.
Philip Gibson. Yes.
Senator Metzenbaum. Yes? OK. All right. [Laughter.]
Mr. Oliver. I was worried there for a moment.
Senator Metzenbaum. Now we have two more. Do you think he
will be a good judge?
Timothy Richards. Yes.
Senator Metzenbaum. OK. All right. And how about you, young
lady? Yes?
Nia Elizabeth Winfield. Yes.
Senator Metzenbaum. Well, Mr. Oliver, on the basis of these six,
you are a judge.
Mr. Oliver. I would hope that the committee would be as favor-
able, Mr. Chairman.
Senator Metzenbaum. I will report this to the other members of
the committee and to the U.S. Senate. I think it will make a big
difference in their deliberations.
Thank you very much, Mr. Oliver.
Mr. Oliver. Thank you, Mr. Chairman.
Senator Metzenbaum. With that, this committee stands ad-
journed.
[Whereupon, at 11:33 a.m., the committee was adjourned.]
[Submissions for the record follow:]
535
SUBMISSIONS FOR THE RECORD
UNITED STATES SENATE
Conunittee on the Judiciary
Washington, DC 20510-6275
QUESTIONNAIRE FOR JUDICIAL NOMINEES
I. BIOGRAPHICAL INFORMATION (PUBLIC)
Full name (include any former names used.)
Robert Harlan Henry
Address: List current place of residence and office address (es).
Home: 322 Northwest 15th Street
Oklahoma City, Oklahoma 73103
Office: Oklahoma City University School of Law
Office of the Dean
2501 North Blackwelder
Oklahoma City, Oklahoma 7 3106
Date and place of birth.
April 3, 1953; Shawnee, Oklahoma
Marital Status (include maiden name of wife, or husband's name). List
spouse's occupation, employer's name and business address(es).
Married
Dr. Janice Loraine Ralls Henry (Maiden name: Baker)
Dentist and Instructor
University of Oklahoma College of Dentistry
Division of Community Dentistry
Native American Center of Excellence Consortium
1001 Stanton L. Young Boulevard
Oklahoma City, Oklahoma 73104
Education: List each college and law school you have attended,
including dates of attendance, degrees received, and dates degrees were
granted.
University of Oklahoma
Norman, Oklahoma
1971-1974
Bachelor of Arts (with High Honors)
May 1974
University of Oklahoma
College of Law
Norman, Oklahoma
1974-1976
Juris Doctor
December 1976
*
536
Employment Record. List (by year) all business or professional
corporations, companies, firms, or other enterprises, partnerships,
institutions and organizations, nonprofit or otherwise, including
firms, with which you were connected as an officer, director, partner,
proprietor, or employee since graduation from college.
June 1991 - Present
Dean and Professor of Law
Oklahoma City University School of Law
2501 North Blackwelder
Oklahoma City, Oklahoma 73106
January 1987 - June 1991
Attorney General of Oklahoma
Office of Attorney General
State Capitol
Oklahoma City, Oklahoma 73105
October 1983 - January 1987
Partner
Henry, Henry & Henry
4419 North Bryan
Shawnee, Oklahoma 74801
May 1977 - October 1983
Associate (later Partner)
Henry, West, Sill & Combs
231 North Broadway
Shawnee, Oklahoma 74801
November 1976 - Noyember 1986
State Representative
Oklahoma House of Representatives
State Capitol Building
Oklahoma City, Oklahoma 73105
May 1976 - May 1977
Legal Intern
Henry, West & Sill
231 North Broadway
Shawnee, Oklahoma 74801
Partnerships:
June 93 - Present
Henry's Antiques
322 Northwest 15
Oklahoma City, Oklahoma 73103
Organizations:
Boy Scouts of America, Last Frontier Council, Board of Directors,
1989 - 1991
Jasmine Moran Foundation Children's Museum, Advisory Board, 1990 -
Present
537
KCSC Radio, Board of Directors, 1986-88
League of Women Voters of Oklahoma, Member, Financial Advisory
Committee, 1991 - Present
National Conference of Christians and Jews, Oklahoma City Region,
Board of Directors, 1991 - Present; currently President
Oklahoma Nature Conservancy, Board of Directors, 1991 - Present
Oklahoma Federation of Parents, Board of Directors, 1989
Oklahoma Academy for State Goals, Executive Committee, 1989 -
Present
Oklahoma University Press, Board of Visitors, 1989 - Present
Oklahoma Independent Colleges Foundation, Board of Directors, 1990 -
Present
Oklahoma Alliance against Drugs, Board Member, 1988 - 1989
REST (Project of Downtown Outreach Committee, Inc.)/ Board of
Directors, 1989 - 1990
Southwest Regional Center for Drug Free Schools and Communities,
Board Member, 1989 - 1990
St. Gregory's College (Catholic-Benedictine), Board of Directors,
1983 - Present; formerly Chair of the Board, 1986 - 1990
Western History Collection of the University of Oklahoma, Board of
Trustees, 1991 - Present
7. Military Service; Have you had any military service? If so, give
particulars, including the dates, branch of service, rank or rate,
serial number and type of discharge received.
No
8. Honors and Awards; List any scholarships, fellowships, honorary
degrees, and honorary society memberships that you believe would be of
interest to the Committee.
University Scholar - University of Oklahoma, 1971
United States Senate Youth Program, William Randolph Hearst Foundation
Scholar, 1971
National Winner of Elk's Leadership Award (Named by United States
Senators Ernest Hollings and Barry Goldwater) , 1971
Legislator of the Year - Oklahoma Trial Lawyers Association, 1979
Distinguished Service Citation - Oklahoma Baptist University Alumni
Association, 1982
Appreciation of Sincere Efforts for Promotion of Pakistan-American
Friendship - Pakistan Student Association, University of Oklahoma,
1983
National Black Caucus of State Legislators and Oklahoma Legislative
Black Caucus A. C. Hamlin Award, 1984
Outstanding Young Men of America, 1986
Annual Human Rights Award - Oklahoma Human Rights Commission, 1988
Outstanding Assistance - Oklahoma Chapter of International Association
of Arson Investigators, 1988
Outstanding Comrounication and Leadership - Toastmasters, International,
1988
Certificate of Appreciation - Oklahoma Crime Victims Compensation
Board, 1988
Three Outstanding Young Oklahomans - Oklahoma Jaycees, 1988
Outstanding Young Men of America, 1989
538
Recognition and Appreciation for Service - Asian-American Leadership
Conference/Asia Society of Oklahoma, 1990
Certificate of Appreciation - Association of Oklahoma Narcotics
Enforcers, 1990
Conservationist of the Year - Oklahoma Wildlife Federation, 1990
Oklahoma Indian Bar Association Award ("For Outstanding Service to the
Profession and for Improving Relations Among the Tribes and the
State"), 1991
Participant, United States Department of Justice, Federal Bureau of
Investigation, "Addressing Violent Crime Through Community
Involvement," October 15-18, 1991
Farmers Union Award, 1991
Phi Beta Kappa - Alumni membership for leadership in the study of the
constitution of the state, 1993
Oklahoma City Chapter of Hadassah - Myrtle Wreath Award: Contribution
Towards the Betterment of the World in Humanitarianism, 1993
Bar Associations; List all bar associations, legal or judicial-related
committees or conferences of which you are or have been a member and
give the titles and dates of any offices which you have held in such
groups.
Oklahoma Bar Association, 1977 - Present
Uniform Laws Committee, 1988 - Present
American Bar Association, 1991 - Present
National Conference of Commissioners on Uniform State Laws Commissioner
for Oklahoma, 1982 - Present
"Victims of Crime" Drafting Committee, 1989 - Present
"Civil Forfeitures" Drafting Committee, 1991 - Present
Study Committee on the Uniform Rules of Evidence, 1993 -
Present
Oklahoma County Bar Association, 1992 - Present
Oklahoma Fellow of the American Bar Foundation, June 1992 - Present
American Inns of Court, William J. Holloway, Jr. Inn, Master, Appointed
by Federal District Judge Layne Phillips, 1989 - Present
Oklahoma Trial Lawyers Association, 1993 - Present
National Association of Attorneys General, 1987 - 1991
Supreme Court Committee: Member, 1988-1991; Chair, 1991
State Supreme Court Project Advisory Committee: Member, 1988 -
1989
State Constitutional Law Advisory Committee: Member, 1989-1991;
Chair, 1990-1991
Agriculture and Rural Legal Affairs Committee: Chair, 1988 - 1990
Civil Rights Committee: Vice Chair, 1990-1991
Phi Delta Phi, 1977
Civil Justice Reform Act Advisory Group, United States District Court,
Western District of Oklahoma, appointed by Chief Judge Ralph
Thompson, 1993 to Present
American Bar Association: United States Office of Personnel
Management Administrative Law Judge (ALJ) Interview Panel, 1993
Oklahoma Criminal Justice Center Board, 1981 - 1983
Supreme Court of Oklahoma Appellate Judicial Conference; Presentation,
1988
Chairman, Oklahoma Constitution Revision Study Commission, appointed
by Governor Henry Bellmon, 1988-1992
539
Sovereignty Symposium (Native American Legal Symposium sponsored by the
Supreme Court of Oklahoma); Presentations, 1988, 1989, and 1990;
Moderator, 1991
10. Other Memberships; List all organizations to which you belong that are
active in lobbying before public bodies. Please list all other
organizations to which you belong.
The following organizations to which I belong occasionally make
legislative recommendations:
Oklahoma Academy for State Goals
League of Women Voters (Advisory Member)
American Bar Association
Oklahoma Bar Association
For other organizations, please see question #6:
11. Court Admission; List all courts in which you have been admitted to
practice, with dates of admission and lapses if any such memberships
lapsed. Please explain the reason for any lapse of membership. Give
the same information for administrative bodies which require special
admission to practice.
United States Supreme Court
January 12, 1987
United States Court of Appeals for the Tenth Circuit
December 22, 1986
United States District Court for the Eastern District of Oklahoma
March 20, 1987
United states District Court for the Western District of Oklahoma
October 27, 1993
Oklahoma Supreme Court and all Courts in Oklahoma
April 22, 1977
12. Published Writings; List the titles, publishers, and dates of books,
articles, reports, or other published material you have written or
edited. Please supply one copy of all published material not readily
available to the Committee. Also, please supply a copy of all speeches
by you on issues involving constitutional law or legal policy. If
there were press reports about the speech, and they are readily
available to you, please supply them.
PUBLICATIONS:
"The Oklahoma Powers of Appointment Act of 1977." Rarick, J., Henry,
R. , Oklahoma Law Review. Vol. 32, pp. 787-811. (See Attachment 12 I.)
"The Oklahoma Constitutional Revision Commission: A Call to Arms or
the Sounding of Retreat?" Henry, R. , Oklahoma Citv University Law
Review, Vol. 17(1), Spring 1992, pp. 177-199. (See Attachment 12 II.)
540
"The Constitution of the State of Oklahoma: Recommendation for
Revision" (Report of the Oklahoma Constitution Revision Study
Commission, Robert H. Henry, Chairman) , Oklahoma Citv University Law
Review. Fall 1991, Volume 16(3).
"Nations Within A Nation," Oklahoma Today. May-June, 1992, p. 35. (See
Attachment 12 III.)
The Office of Attorney General; Powers and Duties. Ross, Lynne,
Editor. National Association of Attorneys General, 1988. Henry,
Robert H., et al.. Editorial Board.
Life and Times of Henry Bellmon. Bellmon, Henry, Council Oak
Publishing Co., Inc., 1992. Preface by Robert H. Henry.
Oklahoma Business Organizations; Formation and Representation.
Faught, Irving L. , Aspen Publishers, 1990. Preface by Robert H. Henry.
(See Attachment 12 IV.)
Oklahoma Government; Politics, and Policies. Morgan, David, et al..
University of Nebraska Press, 1990. Foreword by Robert H. Henry. (See
Attachment 12 V.)
"A Black Hat for the Lone Ranger? The Attorney General as Defender of
Tort Claims," The Journal of State Government. May-June, 1988, p. 112.
(See Attachment 12 VI.)
"Constitutional Convention Gains Support as One Answer to Economic
Stagnation," Oklahoma Business. January, 1987, p. 27.
"Little Giant: A Tale of Quiet Nobility," Book Review in The
Chronicles of Oklahoma. Volume LXIX, Number One, Spring 1991.
Then to the Rock Let Me Fly: Luther Bohanon and Judicial Activism.
Weaver, Jace, University of Oklahoma Press, 1993. Foreword by Robert
H. Henry.
SPEECHES;
Most of my speeches were delivered from notes which I did not retain.
Those that I have texts for are attached.
13. Health; What is the present state of your health? List the date of
your last physical examination.
Excellent
October 1993
14. Judicial Office: State (chronologically) any judicial offices you have
held, whether such position was elected or appointed, and a description
of the jurisdiction of each such court.
Not applicable
/
541
15. Citations; If you are or have been a judge, provide: (1) citations for
the ten most significant opinions you have written; (2) a short summary
of and citations for all appellate opinions where your decisions were
reversed or where your judgment was affirmed with significant criticism
of your substantive or procedural rulings; and (3) citations for
significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulingson such opinions.
If any of the opinions listed were not officially reported, please
provide copies of these opinions.
Not applicable
16. Public Office; State (chronologically) any public offices you have
held, other than judicial offices, including the terms of service and
whether such positions were elected or appointed. State
(chronologically) any unsuccessful candidacies for elective public
office.
State Representative, State of Oklahoma, 1976-1986 (5 terms, last four
reelected without opposition)
Attorney General of Oklahoma, 1987-1991 (reelected without opposition,
resigned to become Dean and Professor of Law, Oklahoma City University
School of Law)
17. Legal Career;
a. Describe chronologically your law practice and experience after
graduation from law school including:
1. whether you served as clerk to a judge, and if so, the name of
the judge, the court, and the dates of the period you were a
clerk;
Not applicable
2. whether you practiced alone, and if so, the addresses and
dates;
Not applicable
3. the dates, names and addresses of law firms or offices,
companies or governmental agencies with which you have been
connected, and the nature of your connection with each;
May 1976 - May 1977
Legal Intern
Henry, West & Sill
231 North Broadway
Shawnee, Oklahoma 74801
542
November 1976 - November 1986
State Representative
Oklahoma House of Representatives
State Capitol Building
Oklahoma City, Oklahoma 73105
May 1977 - October 1983
Associate (later Partner)
Henry, West, Sill & Combs
231 North Broadway
Shawnee, Oklahoma 74801
October 1983 - January 1987
Partner
Henry, Henry S Henry
44 09 North Bryan
Shawnee, Oklahoma 74801
January 1987 - June 1991
Attorney General of Oklahoma
Office of Attorney General
State Capitol
Oklahoma City, Oklahoma 73105
June 1991 - Present
Dean and Professor of Law
Oklahoma City University School of Law
2501 North Blackwelder
Oklahoma City, Oklahoma 73106
b. 1. What has been the general character of your law practice,
dividing it into periods with dates if its character has
changed over the years?
1976 - 1986
In the summer of 1976 I was elected to serve in the state
legislature. I entered the Oklahoma House of Representatives
in January of 1977. In May of 1977, I began law practice with
Henry, West & Sill, a small-town general practice law firm
where I had interned. (Legislative service is "part-time" in
Oklahoma; the legislature usually convenes in January and
adjourns in May.)
My law practice was very general and varied, ranging from
probate practice to family law to criminal law. I handled
juvenile matters, corporate organization, real estate and title
opinions. I represented victims and defendants in criminal
543
matters and, in general, engaged in a very broad legal practice
customary in small towns. My representation of clients
included numerous appearances in courts in trials mostly non-
jury.
1987 - 1991
As Attorney General of Oklahoma, a state constitutional
officer, I represented the State of Oklahoma in both civil and
criminal matters. In addition to involvement in and
responsibility for administration of 50 attorneys and 40
support personnel, I was directly involved in the management
and oversight of some 5,500 criminal cases and 5,500 civil
cases. I issued some 209 formal opinions of the Office of
Attorney General. I proposed and drafted legislation. I
worked closely with numerous state district attorneys. United
States Attorneys, and other state, federal and local
enforcement agencies. I argued before federal and state
administrative agencies, testified twice before a United States
Senate Sub-committee, reviewed and drafted appellate briefs
filed in federal and state courts, and appeared as co-counsel
in cases before the United States Supreme Court and the United
States Court of Appeals for the Tenth Circuit.
Describe your typical former clients, and mention the areas, if
any, in which you have specialized.
In private practice my clients included farmers, teachers,
business persons, and firms. I worked for several charitable
concerns, several banks, and several small businesses. I
specialized in probate and family law.
As Attorney General my clients included ratepayers (in utility
regulation cases) , citizens of the State of Oklahoma and state
agencies. I concentrated on reorganizing the state's law firm
and expanding the Attorney General's statutory powers into
utility and insurance rate cases (in order that the Attorney
General could appear as an intervener for the ratepayers) ; in
collection of student loans; in Medicaid fraud; and in drug
abuse. I specialized to some extent in Indian law. I also
initiated the first state-federal white collar felony trial in
recent years. My office handled numerous other cases in the
federal courts.
As Dean of the School of Law at Oklahoma City University my
primary tasks have been administration and teaching. However,
I have on a pro bono basis consulted with the Oklahoma County
Public Defender and several not-for-profit entities. I have
also lectured or spoken at continuing legal education seminars
specifically in the areas of openness in government ("Sunshine"
Laws) and ethics. I have taught or lectured in Legislation,
Administrative Law, and Jurisprudence.
544
Did you appear in court frequently, occasionally, or not at
all? If the frequency of your appearance in court varied,
describe each such variance, giving dates.
I appeared in court fairly frecjuently from 1977 until 1985. As
legislative duties (including serving as Chair of the House
Judiciary Committee and as Commissioner for Oklahoma to the
National Conference of Commissioners on Uniform State Laws)
increased, my court appearances became less frequent.
As Attorney General I have appeared before several courts and
numerous state regulatory agencies. I monitored court
proceedings in numerous other criminal and civil cases in which
the Office of Attorney General was involved. In federal court
my office handled hundreds of cases including 42 U.S.C. S 1983
cases, federal Habeas Corpus matters, and capital litigation.
While Dean of the Oklahoma City University School of Law I have
made only a few court appearances.
What percentage of these appearances was in:
(a) federal courts;
15 percent
(b) state courts of record;
75 percent
(c) other courts.
10 percent
What percentage of your litigation was:
(a) civil;
90 percent
(b) criminal.
10 percent
State the number of cases in courts of record you tried to
verdict or judgment (rather than settled) , indicating whether
you were sole counsel, chief counsel, or associate counsel.
Total Private Practice (estimate) 80 cases
Sole counsel 50 cases
Chief counsel 15 cases
Associate counsel 15 cases
10
I
545
As Attorney General I have been directly involved in the
oversight and management of thousands of cases. I have
personally been involved with making prosecutorial decisions in
many of the criminal matters, as well as litigative decisions
in many civil cases. (See Attachment 17 c 4.)
5. What percentage of these trials was:
(a) jury;
10 percent
(b) non-jury.
90 percent
18. Litigation; Describe the ten most significant litigated matters you
personally handled. Give the citations, if the cases were reported,
and the docket number and date if unreported. Give a capsule summary
of the substance of each case. Identify the party or parties whom you
represented; describe in detail the nature of your participation in the
litigation and the final disposition of the case. Also state as to
each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or judges before
whom the case was litigated; and
(c) the individual name, addresses, and telephone numbers of co-
counsel and of principal counsel for each of the other parties.
(1) United States of America v. Elvin Leon Hibbs. Jefferson B.
Kinney. Jr.
CR 89-8
Substance of Case:
On January 11, 1989, a federal grand jury in the Western District of
Oklahoma returned a forty-two count indictment against defendant Elvin
Leon Hibbs. Jefferson B. Kinney, Jr. was named as a codefendant and was
charged in Count 42. The initial forty-one counts in the indictment
charged mail fraud, in violation of Title 18 U.S.C. 1341. The forty-
second count alleged that the defendant and Kinney conspired to commit
mail fraud in violation of 18 U.S.C. 371.
The defendant entered pleas of not guilty to each count of the indictment
on January 17, 1989. On a motion by the government, the court dismissed
Counts 16, 35 and 37 of the indictment, with prejudice, on June 12, 1989.
This was the first cooperative federal/state white collar prosecution in
Oklahoma in modern times. Defendants, one of whom was a state college
president, were charged with defrauding the state of Oklahoma, through
11
546
a scheme to convert public money to personal use. The case began with
a state investigation which involved evidence of violations of both state
and federal law. In order to invoke the investigative power of the FBI
and the federal grand jury process, the United States Attorney and I
determined to proceed on the federal charges. With the permission of the
United states Attorney, I cross-designated two of my lawyers as Assistant
U. S. Attorneys, who cooperated fully with the federal government and
participated in all aspects of the case. Under the Oklahoma
Constitution's prohibition against "dual office holding" I, as Attorney
General, could not be cross-designated. The resulting case allowed the
state and federal government to proceed in trying a most difficult matter
and laying the foundation for future joint effort.
Party Represented:
My staff represented the state of Oklahoma's interest as well as that of
the United States. Chief co-counsel was Ms. Arlene Joplin, Esg.,
Assistant United States Attorney.
Nature of Participation:
Evaluated investigation by the State Auditor and Inspector, arranged for
cross-designation of senior staff, evaluated evidence presented before
federal grand jury, devised strategy, participated in all prosecutorial
decisions, and attended portions of trial.
Disposition of case:
Jury trial began on June 12, 1989, and continued through July 7, 1989,
when the jury found the defendant Elvin Leon Hibbs guilty on each of the
remaining counts in the indictment. On July 21, 1989, defendant
Jefferson B. Kinney, Jr., entered a plea of guilty to a superceding
information which charged misprision of a felony.
Date of Trial:
June 12-July 7, 1989
Court :
United States District Court, Western District of Oklahoma
Judge :
Honorable Ralph G. Thompson, Chief Judge
United States District Court
200 Northwest 4th
Oklahoma City, Oklahoma 73102
(405) 231-5153
12
547
Co-counsel:
Chief Trial Counsel: Arlene Joplin
United States Attorneys Office
200 Northwest 4th, Room 4434
Oklahoma City, Oklahoma 73102
(405) 231-5281
Susan Stewart Dickerson, Cross-designated
Special Assistant United States Attorney
(Also Oklahoma Assistant Attorney General)
United States Attorneys Office
200 Northwest 4th, Room 4434
Oklahoma City, Oklahoma 73102
(405) 231-5281
Charles M. McLoughlin, Cross-designated
Special Assistant United States Attorney
(Also Oklahoma Assistant Attorney General)
United States Attorneys Office
3 33 West 4th Street
3900 U. S. Courthouse
Tulsa, Oklahoma 74103
(918) 581-7463
Counsel for Other Parties:
D . C . Thomas
201 Robert S. Kerr Avenue, Suite 504
Oklahoma City, Oklahoma 73102
(405) 235-4300
(2) In the Matter of the Workers' Compensation Rate Filing by the
National Council on Compensation Insurance
Filing No. 87-2318
Substance of Case:
Workers' compensation carriers sought an increase of 33.8% in rates
charged to Oklahoma businesses in an application filed before the State
Board for Property and Casualty Rates. I, as Attorney General,
intervened on behalf of ratepayers pursuant to gubernatorial request,
necessary under Oklahoma law to authorize the Attorney General to protect
the collective interests of insurance consumers of the state in rate
proceedings before the Board.
Party Represented:
Citizens and ratepayers of Oklahoma pursuant to request by the Governor
13
548
Nature of Participation:
Supervised case, researched law, planned strategy, and reviewed
pleadings.
Disposition of Case:
I contested a number of adjustments sought by the industry, and
recommended an increase of only 14.4%. The Board issued an order
limiting the average increase in approved rates to 23.8%. Because most
insurance carriers were already charging 25.9% above the most recently
approved rates by means of "consent-to-rate" forms, the Board's order
actually resulted in an average decrease in rates paid by Oklahoma
businesses.
Date of Trial:
April 13-14, 1988
Court :
Oklahoma State Board for Property and Casualty Rates
Proceeding before Oklahoma State Board for Property and Casualty Rates,
Order issued May 12, 1988
Gerald Grimes
(Former Chair of State Board)
Executive Director, Oklahoma Asphalt Pavement Association
Post Office Box 75817
Oklahoma City, Oklahoma 73147
(405)947-7675
Jack Emerson (Former board member)
10405 Paisley Road
Yukon, Oklahoma 73099
(405) 324-5230
James Duty (Former board member)
325 Wheeler
Ardmore, Oklahoma 73401
(405)223-3809
Co-counsel:
Assistant Attorney General Robert Butkin
Office of the Attorney General
State Capitol Building
Oklahoma City, Oklahoma 73105
(405) 521-3921
Other office: (405) 252-4311
14
549
Counsel for Other Parties:
National Council for Compensation Insurance
Larry Derryberry
Stephen G. Solomon
Derryberry, Quigley, Parrish & Gooding
4800 North Lincoln Boulevard
Oklahoma City, Oklahoma 73105
(405) 528-6569
Oklahoma State Chamber of Commerce and Industry
Julius Kubier
4020 Lincoln Boulevard
Oklahoma City, Oklahoma 73105
(405) 424-4003
(3) In the Matter of the Workers' Compensation Rate Filing by the
National Council on Compensation Insurance
Filing No. 88-2791
Substance of Case:
The National Council for Compensation Insurers again sought rate
increases of 14.0%. My office intervened and sought a rate decrease of
13.4%. This case was different from the first in that it was brought
under a new power of the Attorney General, based on a statute I drafted
giving the Attorney General direct power to intervene in insurance rate
cases. This removed the Attorney General from the constraint of having
to coordinate gubernatorial involvement in these cases, creating more
efficient protection for the ratepayers.
Party Represented:
Citizens and ratepayers of Oklahoma pursuant to statutory authority
Nature of Participation:
Supervised case, researched law, reviewed pleadings, and appeared at
hearing.
Disposition of Case:
The Board denied any rate increase and issued an order keeping rates
level.
Date of Trial:
May 23-25, 1989
15
550
Court :
Oklahoma State Board for Property and Casualty Rates
Proceeding before Oklahoma State Board for Property and Casualty Rates,
Order issued June 22, 1989
Gerald Grimes
(Former Chair of State Board)
Executive Director, Oklahoma Asphalt Pavement Association
Post Office Box 75817
Oklahoma City, Oklahoma 73147
(405)947-7675
Jack Emerson (Farmer board member)
10405 Paisley Road
Yukon, Oklahoma 73099
(405) 324-5230
R. Don Coyer (Former board member)
3116 Eton
Oklahoma City, Oklahoma 73122
(405) 942-3673
Co-counsel:
Assistant Attorney General Robert Butkin
Office of the Attorney General
State Capitol Building
Oklahoma City, Oklahoma 73105
(405) 521-3921
Other Office: (405) 252-4311
Counsel for Other Parties:
National Council for Compensation Insurance
Larry Derryberry
Stephen G. Solomon
Derryberry, Quigley, Parrish & Gooding
4800 North Lincoln Boulevard
Oklahoma City, Oklahoma 73105
(405) 528-6569
Oklahoma State Chamber of Commerce and Industry
Julius Kubier
4020 Lincoln Boulevard
Oklahoma City, Oklahoma 73105
(405) 424-4003
16
551
(4) Henry v. Corporation Commission
825 P. 2d 1262 (1990)
Oklahoma Supreme Court
Appeal Nos. 68776, 68793, 68795
Substance of Case:
During the pendency of a general review of applicant Arkansas-Oklahoma
Gas Corporation's request for a rate increase, the Oklahoma Corporation
Commission permitted an upward adjustment in certain elements of the
rates without required publication notice to the ratepayers.
Parties Represented:
State of Oklahoma
Utility Consumers of State of Oklahoma
Nature of Participation:
As the representative of utility consumers pursuant to request by the
Governor, I challenged the decision of the Oklahoma Corporation
Commission which permitted the utility to increase certain elements of
its rates without proper notice to its ratepayers. I also provided legal
advice to the Eastern Oklahoma Legislative Delegation, which challenged
the agency's action on related grounds.
Disposition of Case:
The Oklahoma Supreme Court ruled that the Commission's failure to follow
its own rules requiring publication notice of rate hearings violated the
due process rights of the ratepayers. The court ruled that an
administrative agency must follow its own rules even where the notice
required by those rules was more generous than that otherwise required
by statute or constitution. This was an important new "right" for
ratepayers, established by this case.
The court reversed the agency order which had permitted the rate
increase. Following the court's decision, the Corporation Commission
approved a stipulation which directed the utility to refund approximately
$500,000 to AOG's Oklahoma customers.
Date of Trial:
April 1986 - June 1987
Court :
Original Administrative Proceeding Approving Rate Increase
Docket PUD 000158, Order 297572
Docket PUD 000079, Order 310988
17
\
552
Oklahoma Corporation Coiwnission
Commissioners:
James B. Townsend
16506 Highway 102
Shawnee, Oklahoma 74801
(405) 273-3725
Bob Hopkins
Jim Thorpe Building
2101 Lincoln Boulevard
Oklahoma City, Oklahoma 73105
(405) 521-2307
Norma Eagleton
2727 East 21st, Suite 305
Tulsa, Oklahoma 74114
(918) 665-1411
Supreme Court Appeal
Henry v. Corporation Commission. 825 P. 2d 1262 (1990)
Decision issued October 2, 1990
Justice Lavender wrote for the court. Justice Kauger and Justice Opala
filed separate concurring opinions.
Supreme Court of Oklahoma
The Honorable Robert Lavender
The Honorable Yvonne Kauger
The Honorable Marian Opala
Corporation Commission's Decision on Remand
Order 365758 (May 28, 1992)
Docket Nos. PUD 00079, PUD 000158, PUD 000313, PUD 000373, PUD 01294
Oklahoma Corporation Commission
Bob Anthony
J. C, Watts
Cody Graves
Co-counsel:
Assistant Attorney General Robert Butkin
Office of Attorney General
State Capitol
Oklahoma City, Oklahoma 73105
(405) 521-3921
Other Office: (405) 252-4311
18
553
Counsel for Other Parties:
Maribeth Snapp
Jose J. Hernandez
Office of Legal Counsel
Oklahoma Corporation Conunission
Jim Thorpe Building
2101 Lincoln Boulevard
Oklahoma City, Oklahoma 7 3105
(405) 521-2255
Jim Hamilton
Oklahoma State Representative
(Eastern Oklahoma Legislative Delegation)
Post Office Box 660
Poteau, Oklahoma 74953-0660
(918) 647-9171
William L. Anderson
Cody Waddell
(Arkansas-Oklahoma Gas Company)
2212 Northwest 50
Oklahoma City, Oklahoma 73112
(405) 840-4408
(5) The Application of Arkansas-Oklahoma Gas Corporation for an
Adjustment of Its Rates and Charges for Utility Service
Cause PUD 00079, filed December 26, 1985 (Proceeding before Oklahoma
Corporation Commission)
Substance of Case:
This matter gave rise to the case previously described. A gas utility
serving approximately 14,000 customers in southeastern Oklahoma sought
a rate increase in excess of $1,000,000 per year.
Parties Represented:
State of Oklahoma
Utility Consumers of State of Oklahoma
Nature of Participation:
I supervised the case, coordinated legal strategy, appeared and argued
on behalf of the ratepaying public. The requested rate increase was
challenged by the Attorney General's office, which was assisted by expert
consultants. I also coordinated legal strategy with Eastern Oklahoma
Legislative Delegation.
19
554
Disposition of Case:
Order 317854, issued October 14, 1987, approving rate increase of
$470,000 per year.
Date of Trial:
August 18-20, 1987
Court :
Oklahoma Corporation Conunission
Conunissioners :
James B. Townsend
16506 Highway 102
Shawnee, Oklahoma 74801
(405) 273-3725
Bob Hopkins
Jim Thorpe Building
2101 Lincoln Boulevard
Oklahoma City, Oklahoma 73105
(405) 521-2307
Norma Eagleton
2727 East 21st, Suite 305
Tulsa, Oklahoma 74114
(918) 665-1411
Co-counsel:
Assistant Attorney General Robert Butkin
Office of Attorney General
State Capitol
Oklahoma City, Oklahoma 73105
(405) 521-3921
Other Office: (405) 252-4311
Counsel for Other Parties:
Maribeth Snapp
Jose J. Hernandez
Office of Legal Counsel
Oklahoma Corporation Commission
Jim Thorpe Building
2101 Lincoln Boulevard
Oklahoma City, Oklahoma 73105
(405) 521-2255
20
555
Jim Hamilton
Oklahoma State Representative
(Eastern Oklahoma Legislative Delegation)
Post Office Box 660
Poteau, Oklahoma 74953-0660
(918) 647-9171
William L. Anderson
Cody Waddell
(Arkansas-Oklahoma Gas Company)
2212 Northwest 50
Oklahoma City, Oklahoma 73112
(405) 840-4408
(6) The Application of Howard W. Motley. Jr. for an Inquiry Into the
Rates and Charges of Southwestern Bell Telephone Company
Cause PUD 000662, filed January 25, 1989 (Proceeding before Oklahoma
Corporation Commission)
Substance of Case:
This was a rate investigation of a major telephone utility initiated by
the staff of the Oklahoma Corporation Commission. When we experienced
inordinate delays in the discovery process and our preliminary
investigation indicated that significant rate reductions should be
forthcoming, we asked the Commission to place Bell's rates subject to
refund pending disposition. This was a completely new remedy, and
derived from the need to protect ratepayers from delay in the hearing
process.
Parties Represented:
State of Oklahoma
American Association of Retired Persons
Nature of Participation:
I intervened pursuant to statutory authority to represent ratepayers.
My office's involvement included review and discovery of the utility's
financial information; presentation of direct testimony by expert
witnesses; cross-examination of witnesses of the utility, commission
staff, and other parties; extensive briefing of legal issues, including
a successful effort to obtain an interim commission order placing utility
rates subject to refund. I reviewed pleadings and discovery, conferred
with opposing parties, and planned trial strategy.
Disposition of Case:
Our new theory was accepted; interim order placed rates subject to
refund. Corporation Commission Order 367368, August 26, 1992, quantified
the refund and directed the utility to make prospective rate reductions.
21
556
Appeal now pending before Oklahoma Supreme Court in Southwestern Bell
Telephone Co. v. Oklahoma Corporation Commission. Appeal No. 80,333
Court:
Oklahoma Corporation Commission
Judges :
Commissioners:
Bob Anthony
J. C. Watts
Cody Graves
Co-counsel:
Assistant Attorney General Robert Butkin
Office of Attorney General
State Capitol
Oklahoma City, Oklahoma 73105
(405) 521-3921
Other Office: (405) 252-4311
Eric King
American Association of Retired Persons
333 0 French Park Suite
Edmond, Oklahoma 73034
(405) 340-7988
Principal Counsel for Other Parties:
Glenn Glass (Counsel for Southwestern Bell during rate case)
7116 Nicki Court
Dallas, Texas 75252
(214) 732-6655
George Makohin
Southwestern Bell Telephone Company
800 North Harvey, Room 310
Oklahoma City, Oklahoma 73102
Lindil Fowler
Maribeth D. Snapp
Donna D. McLain
Oklahoma Corporation Commission
400 Jim Thorpe Building
2101 North Lincoln Boulevard
Oklahoma City, Oklahoma 73105
(405) 521-2255
22
557
Ronald E. Stakein
MCI Telecommunications Corporation
Clark, Stakem, Pherigo & Douglas
101 Park Avenue, Suite 1000
Oklahoma City, Oklahoma 73102
(405) 232-4271
Ron Comingdeer
Oklahoma Rural Telephone Coalition
5534 North Western, Suite 102
Oklahoma City, Oklahoma 73118
(405) 848-5534
Cody B. Waddell
Alltel Oklahoma, Inc.
2212 Northwest 50th, Suite 163
Oklahoma City, Oklahoma 73112
(405) 840-4408
William J. Bullard
Oklahoma Rural Telephone Coalition
522 Colcord Drive
Oklahoma City, Oklahoma 73102-2202
(405) 232-0080
William M. Franz
Communications Workers of America
Franz & Franz
720 Olive Street, Suite 2100
St. Louis, Missouri 63101
(314) 231-2200
(7) State of Oklahoma, ex rel. Robert H. Henrv. Attorney General of
Oklahoma: Gerald Grimes. Insurance Commissioner of Oklahoma; Dean
Calhoun. Labor Commissioner of Oklahoma v. Southwestern Temporary
Services. Inc. et al.
CJ-90-3131
Substance of Case:
Cooperating with the Oklahoma Department of Labor, the Oklahoma
Department of Insurance, and the Texas Attorney General's Office, I
obtained a temporary restraining order, asset freeze, and appointment of
special master against an employee leasing firm which we alleged did not
have authorized workers' compensation insurance coverage, a violation of
state law in both Texas and Oklahoma. This enforcement action was based
on alleged violations of the Oklahoma Consumer Protection Act, and was
the largest and most important case filed under the act. It was also the
first cooperative effort between Oklahoma and another state on interstate
violations of consumer protection acts.
23
558
Three weeks after the case was filed, the defendant's company filed for
bankruptcy protection under Chapter 11. Following a motion by the
Attorneys General of Texas and Oklahoma, the bankruptcy judge appointed
a trustee in the case.
The States of Oklahoma and Texas were active in the bankruptcy case while
continuing the action in state court.
In the state court action, the defendants sought to depose me, Gerald
Grimes, and the trial judge. We sought an order to prevent my being
deposed. After Judge Mathews agreed to a protective order, the
defendants sought a writ of mandamus from the Oklahoma Supreme Court.
The Court declined to assume original jurisdiction.
In August 1993, two of the defendants, Gary Newsom and Jerome Wolf,
received felony convictions in Texas for insurance fraud.
Parties Represented:
The State of Oklahoma
Nature of Participation:
Co-counsel with the assistant attorneys general who handled the case.
I participated in numerous conferences during the investigation,
discussed various aspects of the litigation of the case, and appeared at
District Court.
Disposition of Case:
The obtaining of temporary orders stopped the illegal operation of the
corporation. A plan has been confirmed in the bankruptcy case although
Gary Newsom has appealed the confirmation.
Later, a consent temporary injunction was negotiated in the state case;
however, other portions of the case are still active. No trial date has
been set.
Date of Trial:
1990 - Present
(Some litigation continues)
Court :
Oklahoma County District Court
United States Bankruptcy Court
24
559
Judge :
District Court
The Honorable Eugene H. Mathews
Bankruptcy Court
The Honorable Richard L. Bohanon
Chief Judge, U. S. Bankruptcy Court
Co-Counsel:
Jane Wheeler
Sue Wycoff
Assistant Attorney General
4545 North Lincoln, Suite 260
Oklahoma City, Oklahoma 73105
(405) 521-4274
Counsel for the Other Parties:
Edward Reed
2200 North Classen Boulevard
Oklahoma City, Oklahoma 73106
(405) 524-6500
Danny K. Shadid
211 North Robinson
Oklahoma City, Oklahoma 73102
(405) 232-3400
Trent Pipes
211 North Robinson
Oklahoma City, Oklahoma 73102
(405) 232-3400
C. Craig Cole
2200 North Classen Boulevard
Oklahoma City, Oklahoma 73106
(405) 524-6500
(8) Burlington Northern Railroad Co. v. Oklahoma Tax Commission et al.
481 U.S. 454 (1987)
Substance of Case:
This case involved a dispute regarding Oklahoma's valuation of petitioner
Railroad's property. Section 306(b)(1) of the Railroad Revitalization
and Regulatory Reform Act of 1976 provided that states could not assess
rail property at a value determined by a higher ratio to market value
25
560
than the ratio to market value used to assess other conunercial and
industrial property. Petitioner Railroad alleged that respondent had
discriminated against it in its 1982 tax assessment through and
overvaluation of rail property, even though the assessment ratio was the
same as that used for all other commercial and industrial property in
Oklahoma. Petitioner claimed simply that the State had overvalued the
true market value of petitioner's Railroad system.
The District Court held that the Act required, for federal jurisdictional
purposes, a showing of purposeful overvaluation with discriminatory
intent, that there was no such showing here, and accordingly dismissed
the action for lack of subject matter jurisdiction. The United States
Court of Appeals for the Tenth Circuit affirmed.
Parties Represented:
State Board of Equalization of the State of Oklahoma
Oklahoma Tax Commission
Nature of Participation:
Directed Tax Commission that my office would handle both primary briefing
and oral argument, supervised case, reviewed briefs, discussed and
planned strategy, appeared as co-counsel at oral argument before the
United States Supreme Court.
Disposition of Case:
The Supreme Court held that the Act does permit district court review of
claims of discriminatory taxation based on overvaluation of railroad
property; that a showing of intentional discrimination is not a necessary
predicate to district court review of claims of discriminatory taxation
based on overvaluation of railroad property; and that arguments regarding
comity, as it relates to injunctive relief against state taxation, and
regarding the gains in judicial economy and state tax collection
efficiency attendant to restricting valuation actions constitute matters
of policy that the Court is not free to re-visit.
Date of Trial:
Argued, March 25, 1987; Decided, April 28, 1987
Court: ,
Supreme Court of the United States
Justices:
Opinion by Justice Marshall
26
561
Co-counsel:
David Lee
818 Northwest 63rd
Oklahoma City, Oklahoma 73116
(405) 848-1983
Neal Leader
Office of the Attorney General
State Capitol Building
2300 North Lincoln
Oklahoma City, Oklahoma 7 3105
(405) 521-3921
Counsel for Other Parties:
Burlington Northern Railroad Co.
Betty Jo Christian
Steptoe & Johnson
1330 Connecticut Avenue, N.W.
Washington, DC 20036-1795
(202) 429-3000
Apart from these cases and many others, which as Attorney General it was
my duty to closely supervise and for which I was accountable, there are
several cases from my private law career that are useful to discuss.
These cases are representative of the general practice of law in which
I am proud to have engaged. While their legal significance may be
exceeded by the cases listed above, this is not true of their importance
to the parties and to my development and service as a lawyer.
(9) State of Oklahoma v. Jim Earl West
Case No. CRF-84-41
Substance of Case:
Defendant Jim Earl West was charged with the felony of arson in the first
degree, related to the burning of his residence in Shawnee, Oklahoma.
Defendant pleaded not guilty, and I undertook the task of representing
him. This felony case was quite complex, involving a lengthy preliminary
hearing, depositions, and examination of expert witnesses.
Party Represented:
Defendant, Jim Earl West
27
562
Nature of Participation:
Co-counsel. I conducted initial interviews and depositions, researched
law, prepared pleadings, examined witnesses at trial, and delivered
closing argument to jury.
Disposition of Case:
After an "Allen" charge, the jury found defendant guilty. The verdict
was overturned on appeal.
Date of Trial:
November 29, 1984 to December 1, 1984
Court :
The District Court of the Twenty-third Judicial District Sitting Within
and For Pottawatomie County, State of Oklahoma
Judge :
The Honorable Gary Brown
Co-counsel:
Donald M. Bingham
Riggs, Abney, Neal & Turpen
502 West 6th Street
Tulsa, Oklahoma 74 119
(918) 587-3161
Counsel for Other Party:
Charles McLoughlin
Assistant U. S. Attorney for the Northern District
333 West 4th Street
3900 U. S. Courthouse
Tulsa, Oklahoma 74103
(918) 581-7463
S. Paul Richards
Department of the Public Defender
Child Advocacy Division
Dependency Section
8525 Gibbs Drive, Suite 208
San Diego, California 92123
(619) 974-5757
28
563
(10) Jorene Annette Robbins v. Gerald Randall Robbins
Case No. JFD-80-587
Substance of Case:
Plaintiff and defendant had been married. Prior to their divorce,
defendant had adopted plaintiff's natural daughter and the parties had
one child together. During the defendant father's visitation, he
obtained an emergency order for custody of both children, alleging that
plaintiff mother's boyfriend had sexually molested the children.
Plaintiff sued to retain custody. I had to determine in my own mind what
the facts were in light of the seriousness of the charge. Both parties
had "live-in" paramours, and psychologists on both sides were
inconclusive.
Party Represented:
Plaintiff, Jorene Annette Robbins
Nature of Participation:
As sole counsel I handled all aspects of the case from discovery to
trial.
Disposition of Case:
The court split custody, giving my client custody of her natural child
and the defendant custody of the parties' child. This was, as between
the parties, the most acrimonious private law case I have ever handled.
Date of Trial:
October 5 and October 13, 1981
Court :
The District Court of the Twenty-third Judicial District Sitting Within
and For Pottawatomie County, State of Oklahoma
Judge :
The Honorable Glenn Dale Carter
29
564
Counsel for Other Party:
Floyd Henson
(Mr. Henson Is deceased; his law firm continues; (405) 273-2910.)
19. Legal Activities; Describe the most significant legal activities you
have pursued, including significant litigation which did not progress to
trial or legal matters that did not involve litigation. Describe the
nature of your participation in this question, please omit any
information protected by the attorney-client privilege (unless the
privilege has been waived.)
As a first-term legislator I passed a major reform package in the area
of real property concerning powers of appointment. In my second term,
my interest and work in legal areas caused me to be named vice-chairman
of the Judiciary Committee. By my third term I was appointed chairman
of the Judiciary Committee, and named as a board member of the Oklahoma
Criminal Justice Board.
In these capacities I oversaw almost all legislation affecting the
judicial system in Oklahoma. In 1982 I began service as chairman of the
Appropriations Subcommittee which made all judicial appropriations.
During my legislative career I authored several major pieces of
legislation. Of special note is the Oklahoma Pleading Code, a major
change in Oklahoma's law described by a former Chief Justice of our
Supreme Court as "an act which brought Oklahoma into the twentieth
century in pleading." The act is modeled after, and closely resembles,
the federal pleading code and greatly modernized and simplified our
pleading code. A copy of this bill is attached. (See Attachment 19 I.)
I also authored the Oklahoma Discovery Code, likewise borrowing
extensively from the federal rules. A copy is attached. (See Attachment
19 II.)
My last major codification effort was a substantial revision of
Oklahoma's unique corporation law. In 1947 Oklahoma had adopted a reform
corporation act which sought to promote uniformity, but the act was not
embraced by other jurisdictions. Consequently, Oklahoma found itself —
first, dangerously out of step, and later, behind the times — in the area
of business organizations. After much debate and work the act, which
borrowed extensively from Delaware's code, finally passed. A copy is
attached, along with a general preface explaining the broad policy issues
behind the act which I was asked to write for the principal work
describing the code Oklahoma Business Organizations; Formation and
Representation . by Irving L. Faught (Aspen Publishers, Inc., Rocksville,
Maryland, 1990; preface by Robert Henry) . These and other public service
efforts have led to several commendations from various entities of the
Bar in Oklahoma.
30
565
I left the legislature when I was elected Attorney General of Oklahoma
in 1986. As the chief legal officer of the state, I directed and
supervised thousands of cases. I reformed the office structure,
streamlining filing and document production and borrowing administrative
reorganization techniques from large firms. I was directly involved in
numerous matters of complex litigation, especially in utility, insurance,
and environmental matters, as well as federal and state criminal law
matters.
Again I modeled improvements in the law after federal statutes and
drafted legislation creating, for the first time in our history, a multi-
county grand jury system. I not only drafted and obtained legislative
passage of the statute, I arranged for funding of the grand jury, and
conducted the first voir dire empaneling the first grand jury. Numerous
positive results occurred: a copy of the first and second grand jury
reports are attached. (See Attachments 19 IV and 19 V.)
The Attorney General also has a quasi-judicial role both as a member of
the constitutionally created Board of Equalization (which decides
disputes on evaluation of property for state tax purposes) and more
significantly through the issuance of Opinions of the Attorney General.
During my term as Attorney General I developed a new kind of informal
opinion process that allowed these opinions to be released quickly, often
in a few days, thereby producing cjuicker access to our counsel, reducing
the number of published opinions on unimportant topics, and expending
office resources more efficiently. I continued to use the formal process
for important opinions. I also created the Attorney General's Medicare
Fraud Unit, which has had great success in prosecuting criminal fraud in
this area. I created a student loan collection division which has
resulted in thousands of dollars being returned to the pool of monies
available to make new student loans for needy and deserving students.
Although numerous other issues confronted me as Attorney General, one of
the most important was chairing a blue-ribbon panel to suggest extensive
revisions to Oklahoma's cumbersome state constitution. The panel met for
over two years under my direction and proposed a complete redrafting of
the state constitution. A copy is attached. (See Attachment 19 VI.)
I have served for ten years as a Commissioner for Oklahoma to the
National Conference of Commissioners on Uniform State Laws. I was
recently named to the new Uniform Law Commission Study Committee to
review the Uniform Evidence Code to conform with federal changes and to
address new technologies not adequately handled by either the current
federal or uniform act. The American Bar Association will also have a
representative on this important committee. The Honorable Ralph
Thompson, Chief United States District Court Judge for the Western
District, recently appointed me to the Civil Justice Reform Act Advisory
Group .
31
566
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated receipts from deferred
income arrangements, stock, options, uncompleted contracts and other
future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers,
clients, or customers. Please describe the arrangements you have made
to be compensated in the future for any financial or business interest.
Oklahoma Public Employee's Retirement, Plan 001 — vested retirement, due
from service in State Legislature and as Attorney General. I will be
eligible to receive a monthly sum of income from the retirement system
anytime after the age of 55.
Explain how you will resolve any potential conflict of interest,
including the procedure you will follow in determining these areas of
concern. Identify the categories of litigation and financial
arrangements that are likely to present potential conf licts-of-interest
during your initial service in the position to which you have been
nominated.
I am aware of no financial arrangements that are likely to present a
potential conflict of interest. Of course, I will recuse myself from any
cases in which I was involved as Attorney General of Oklahoma, and I will
follow the Code of Judicial Conduct as it applies to recusal to avoid any
actual or perceived conflict.
Do you have any plans, commitments, or agreements to pursue outside
employment, with or without compensation, during your service with the
court? If so, explain.
No
List sources and amounts of all income received during the calendar year
preceding your nomination and for the current calendar year, including
all salaries, fees, dividends, interest, gifts, rents, royalties,
patents, honoraria, and other items exceeding $500 or more (If you prefer
to do so, copies of the financial disclosure report, required by the
Ethics in Government Act of 1978, may be substituted here.)
Copy of Financial Disclosure Report attached. (See Attachment II 4.)
Please complete the attached financial net worth statement in detail (Add
schedule as called for) .
See Attachment II 5.
32
567
Have you ever held a position or played a role in a political campaign?
If so, please identify the particulars of the campaign, including the
candidate, dates of the campaign, your title and responsibilities.
State Representative, State of Oklahoma, 1976-1986 (5 terms, last four
reelected without opposition.
Attorney General of Oklahoma, 1987-1991 (reelected without opposition;
resigned to become Dean and Professor of Law, Oklahoma City University
School of Law) .
Other than being a candidate, I have served as honorary co-chairman of
the David Boren for Unites States Senate and Al Gore for President in
Oklahoma campaigns.
I was also elected by colleagues in the legislature a*s chairman of the
Democratic Caucus in 1983-1984.
33
568
AO-10
«»». 1/91
Attachment II 4
FINANCIAL DISCLOSURE REPORT
Report Required by the Ethict
1P\-1W. Noyei*er"3g..1?M
(5 U.S.C.A. *pp. 6, 161-U2)
1. Person Reporting (Last name, first, middle initial)
HENRY, ROBERT H.
2. Court or Organization
lOTH CIRCUIT COURT OF APPEAL!
5. Report Type (check appropriate type)
X nomination. Date 0Z/09/W
Initial AnrKial Final
3. Date of Report
02/10/94
i. Title (Article III judges, irtdicate active or
fenior status; Magistrate judges indicate
ull- or part-time)
JUDGE (NOMINEE)
6. Reporting Period
01/01/93 -
01/31/94
7. Chambers or Office Address
OCU SCHOOL OF LAW
2 501 NORTH BLACKWELDER
73106
8. ()n the basis .of the , information contained l.n this Report, it
is, in (py opinion. In compliance with applicable laws ana
regulations
Reviewir>g Officer Signature
IMPORTANT NOTES: The inslmclions accompanying this form must be followed. Complete all parts,
checking the NONE box for each section where you have no reportable information. Sign on last page.
I. POSITIONS. (Reporting individual only; see pp. 7-8 of Instructions.)
POSITION NAME OF ORGANIZATION/ENTITY
NONE (Ho reportable positions)
n
Dean anc3 Professor of Law
Director
Oklahoma City University School of Law
St. Gregory's College
President (Oklahoina City Region) National Conference of Christians and Jews
11. AGREEMENTS. (Reportingindividualonly, see pp. 8-9 of Instructions.)
DATE PARTIES AND TERMS
I NOME (No reportable agreements)
1976-91 State of Oklahoma Public Employees Retirement System
III. NON-INVESTMENT INCOME. (Reporting individual and spouse; sec pp. 9-12 of Instructions.)
DATE SOURCE AND TYPE
(HOfwrarIa only)
NONE (Ho reportable non- investment income)
L_J
GROSS INCOME
(yours, not spouse' sj
1
12/31/93 Dean of Oklahoma City University School of Law, salary S 103978.00
2
12/31/93 Estoril Producing Oil & Gas Royalty. Net S 1481.00
s
12/31/93 Harlan. Inc. (family corporation), director's fees S 1000.00
12/31/93 Oklahoma Gazette, writing fees (donated) $ 280.00
5
12/31/93 Northridge Engergy Corp. Oil & Gas Royalty, net S 997.00
569
FINANCIAL DISCLOSURE REPORT
Maw o< Person ttporting
HENRY, ROBERT H.
Date of Report
02/10/94
IV. REIMBURSEMENTS and GIFTS -- (ransporlation, lodging, food, enterlainment.
(Includes ihose to spouse and dcpcndeni children; use ihe parcnthelicals "(S)" and '(DC)' to indicate reportable
reimbursements and gifts received by spouse and dependent children, rcspccliwiy. See pp. 12-14 of Instructions.)
SOURCE DESCRIPTION
I I NONE (No tucli rcportabto reiiitejrtnMntt or gifts)
Exempt
V. OTHER GIFTS. (Includes those to spouse and dependent children; use the parentheticals "(S)" and "(DC)' to
indicate other gifts received by spouse and dependent children, respectively. See pp. 15-16 of Instructions.)
SOURCE DESCRIPTION VALUE
n
NONE (Ho such reportabte gifts)
1
Exempt $ 0^-OC
2
. $
3
$
VI. LIABILITIES. (Includes those of spouse and dependent children; indicate where applicable, person responsible
for liability by using the parenthetical "(S)" for separate liability of the spouse, "(J)' for joint liability of reporting
individual and spouse, and "(DC)' for liability of a dependent child. See pp. 16-17 of Instructions.)
CREDITOR DESCRIPTION VALUE CODE*
n
NONE (Mo reportable liabitfties)
1
Nation's Bank First mortgage, real estate
2
First Oklahoma Bank Seconci mortgage, real estate
3
First Oklahoma Bank Loan, funding retirement plan
4
VISA Revolving loan
5
MasterCard Revolving loan
6
fS^ Pomona First Federal S & L Home mortgage (California property)
7
(S) Glendale Federal Bank Home mortgage (California property)
• vAuuEccoEs: i:iii^%orm_^ g j IJ^?8J,--n?:888.oco r: il?t'^J,; il?8
M = $100,001 to 1250,000
570
FINANCIAL DISCL080RB REPORT
Name of Person Reporting
HENRY, ROBERT H.
Date of Report
02/10/94
VII. Page 1 INVESTMENTS and TRUSTS "Income, value, transactions (IndudetAoscoftpouse
and dependent children; See pp. 18-26 of Instructions.)
Descrlotion'of Asteti
(incTuerins trust assets)
ilS'SqStt5:5s?RS'{fJ^iSf.5?Kf,?Ii
»SF'^r2K?J^65'84t^&iiir>
Place "(X)" after each asset
exenpt frois prior disctosure.
during
Gross'yatut
at end. of
0.
Transactiona duriaa reporting period
<i)
(2)
(1)
(2)
Value
1o€
Wrger,
If not OBBpt froa diactotur* |
Oay
(J)
«*)
ranUctfon)
NONE (No reportable
incotae, assets, or
transaction*)
Itoyd Nenry Trust
A
Int
Exempt
Aaierican Disposal Svcs.« Inc.
A
None
Exempt
(S) Fidelity Advisors Fuid
0
Div
Exeinpt
(S) Rental property, OK
A
Rent
Exempt
(S) Rental property, CA
A
Rent
Exempt
(S) Flag Investors Ftfvi
A
Div
Exempt
(S) Oktahona Bank
A
Int
Exempt
($) Henry's Antique*
A
None
Exempt
' iSS^^f'-St^r^li f=ili"88,°fo'l!8,ooo f«6?8it'?o»li^ooo g=fiflJ?Wtri??8oo.ooo 8:5lf2«{hlS l1?688?ooo
' U'^clr^-^ 1 03) il:U?o°88,°{o'l!8o.ooo S:«5«?8J,'?on?:888.ooo fcail?t'^J.;;M:88o% •"»""•'«' " ''''■'^
* riircSr!''2?,'°**= s=sga;'iiri. liray' """ °"^>" s=H!TSfa T^ash,Hark.t
571
FINANCIAL DISCLOSURE REPORT
Name of Person Reporting
HENRY, ROBERT H.
Date of Report
02/10/94
VIII. ADDITIONAL INFORMATION or EXPLANATIONS. (Indicate part of Report.)
II. AGREEMENTS
State of Oklahoma Public Employees Retirement System
(Vested retirement paid into state system during my public
service as State Representative and Attorney General of
Oklahoma. 1976-1991; may be withdrawn beginning at age 55.)
POSITIONS (Cont'd.)
POSITION
NAME OF ORGANIZATION /ENTITY
Partner (now inactive)
Director (advisory)
Director
Director
Member. Financial Adv. Committee
Stockholder (small interest)
Member (advisory)
Director
Member, board of trustees
Contributing writer
Director
Henry's Antiques (spouse's business)
Jasmine Moran Children's Museum
The Nature Conservancy (Oklahoma chapter)
Oklahoma Academcy for State Goals
OK League of Women Voters (submitted resign.
American Disposal Service
Board of Visitors. Oklahoma University Press
OK Independent Colleges Foundation. 1990-93
Western History Collection of Univ. of OK
The Oklahoma Gazette
Harlan. Inc. (family corporation)
III. NOM-INVESTMEMT INCOME (Cont'd.)
DATE SOURCE AND TYPE
GROSS INCOME
12/31/92 Dean of Oklahoma City University School of Law, salary S 108839. PC
7
12/31/93 Dept. of Voc. & Tech. Educ. . honorarium (donated) S 400.00
a
12/31/93 Univ. of OK Health Science Center, honorarium (donated) S 200.00
9
12/31/93 Shawnee Lions Club, honorarium (donated) $ 500. PC
10
12/31/93 OK Health & Welfare, honorarium (donated) S 200. PC
572
FINANCIAL DISCLOSURE REPORT
Name of Person Keporting
HENRY, ROBERT H.
Date of Report
02/10/94
III. NON-INVESTMENT INCOME (Cont'd.)
DATE SOURCE AND TYPE
11
12/31/93 Poteau Fndtn. for Excellence, honorarium (donated!
12
12/31/93 OK Assn. of Coll. & Univ. Bus. Mars., honorarium (donated)
II
12/31/93 Vintage Petroleum, oil & gas royalty, net
u
01/31/94 Dean of Oklahoma City University School of Law, salary
15
12/31/92 fSl University of OK Health Science Center, salary
16
12/31/92 (S) Janice L. Ralls. DPS, dental practice, net
17
12/31/93 (S) University of OK Health Science Center, salary
16
01/31/94 (S) University of OK Health Science Center, salary
(Cont'd.)
GROSS INCOMt
_ S 100. PC
$ 600. 0(
S 92. 0(
S S167.0C
S 35446. OC
S 283. OC
S 37480.0(
S 3608. OC
VI.
LIABILITIES
CREDITOR
(S) Bank United of Texas
9
fS) MasterCard
10
(S) VISA
11
IS) Sallie Mae
DESCRIPTION
Home mortgage fEdmond. OK property!
Revolving loan
Revolving loan
VALUE CODE*
L
Student loan
fSl Tinker Credit Union
Student loan
573
FINANCIAL DISCLOSURE REPORT
Naac of Person Reporting
HENRY, ROBERT H.
Date of Report
02/10/94
IX. CERTIFICATION.
In compliance with the provisions of 28 U.S.C. 455 and of Advisory Opinion
No. 57 of the Advisory Committee on Judicial Activities, and to the best of my
knowledge at the time after reasonable inquiry, I did not perform any
adjudicatory function in any litigation during the period covered by this report
in which I, my spouse, or my minor or dependent children had a financial
interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I certify that all the information given above (including information
pertaining to my spouse and minor or dependent children, if any) is accurate,
true, and complete to the best of my knowledge and belief, and that any
information not reported was withheld because it met applicable statutory
provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria
and the acceptance of gifts which have been reported are in compliance with the
provisions of 5/iJ.S.C.A. app. 1 ,j 501 et. seq., 5 U.S.C. 7353 and Judicial
Conference regxllations.
Signature
NOTE: AN/ INDIVIDUAL WHO KNOWIN(
THIS REPORT MAY BE SUBJECT TO CIV;
104, AND 18 U.S.C. 1001.)
Date
^ /o. rffv
,Y AND WILFULLY FALSIFIES PR FAILS TO FILE
L AND CRIMINAL SANCTIONS (5 U.S.C. A. APP. 6,
FILING INSTRUCTIONS:
Mail
signed
orig
inal
and
3
additional copies to:
Committee on Financial Di
Administrative Office of
United States Courts
Washington, D.C. 20544
sclosure
the
574
ROBERT H. HENRY
AND JANICE L. RALLS HENRY (SPOUSE)
FINANCIAL STATEMENT
NET WORTH
Attachment II 5
Provide a complete current financial net worth statement which ilemijes !n detail all assets (including bank
accounts r^al estate securities, trusts, investments, and other financial holdings) all liabilities (including debts,
mortgages, loans, and other financial obligations) of yourself, your spous«, and other Immediate members of
your household.
ASSETS
UABILTTIES
8,300
Nola pjytbl* »o b«nlLi — i*cur»d
No«M p*yibU to b»n\a — un»*cur»d
Notn ptytblt U> r.ljUv«
NolM sny*bU to o1h«ri
Accounti »ivl Nlli du«
Unpiid Incom* Ut
Oth»<- unpaid Ui tnd IntemI
R«>l MtiH mortI»fri p4ytbl« — »dd
»ch^dul•
Oitttl moftgijff "nd oth«r ll«rM
pujrtbl*
Other debt* — Itemln:
Sallie Mae Guaranteed
c
U.S. Cov»>-nm«n( ••curibrt tdd
UHkJ racuritin — «)d ich^Jult
UnllrtKl i»curili« — tdd »c^edul«
Armuna and nolM ncmftbU:
Du« (rom f«l«tivri inij fri«nd»
Du« trom o<h«rs
1.000
0
0
75,072
0
25
8. IOC
30.000
C
0
C
320.095
0
Doubtful
Rail •nil< ownMl — add tchKjult
560. OOC
19.000
0
1
Autoi Jod ot^•r p«fvonil property
154,000
8,700
1
Cith vtlut — li(« Iniunnct
4.895
Student Loan
1
Oih«r tucti — N«mli«;
1
St. of OK Vested Retirement
35. OOC
!
Univ. of 0< Retirement
6.65C
TottI lUbilltld
Nrt worth
TotJl IliblllUei ind net worth
355,895
Oil Interests
5,000
524,047
i
Tdil lu-etl ~^>,
879,942
879.942
CONTINGENT UABIUTIES
CE-NDUL INFORMATION
Aj •odorMr, com«k«r or fuirtntor
OnluMiOf convica plus loin
2.000
A/e iny eiMti pledged? (Add iched-
uie.)
Alt you d«(er>d»nt In eny mta or
tefal ecUonil'
H«v» you ever tjk*n benknjpieyr
*No
0
No
1
Le<«l Cl<im>
\ 0
i
Uithhol(
mq
No
Otti«f tp^clil d«bt V,
0
i
* Only those listed above.
575
SCHEDULE FOR ROBERT H. HENRY
AND JANICE L. RALLS HENRY (SPOUSE)
1
LISTED SECURITIES
1. U. S. Savings Bonds
2. Fidelity High Yield
Fund
6,362.006 shares
1,000
75,072
UNLISTED SECURITIES
1 . American Disposal
5,000 shares @ .005/share
25
REAL ESTATE OWNED
1. Home
Undeveloped land
322 Northwest 15th
Oklahoma City, Oklahoma 73103
Pennington Creek (8 acres in
Johnston County, OK)
An undivided 1/3 interest in 20 acres (including 3 1/3 mineral acres) in
Section 21, T-IO-N; R-3-E of the Indian Meridian
4. Rental property
5. Rental property
5880 Ave. Juan Bautista
Riverside, California 92509
1301 Salem Avenue
Edmond, Oklahoma 73034
230,000
35,000
15,000
185,000
95,000
AUTOS AND OTHER PROPERTY
1 . 1990 Ford Aerostar Van
2. 1981 Toyota Corolla
3. Collection of Antiques
4. Art
5. Coins
6. Stamps
7. Piano
9,000
1,000
101,000
29,000
8,000
2,000
4,000
CASH VALUE LIFE INSURANCE
1. American General Life
1. American Mutual Life Insurance
1,000
3,895
576
SCHEDULE FOR ROBERT H. HENRY
AND JANICE L. RALLS HENRY (SPOUSE)
PAGE 2
OTHER ASSETS /
L An undivided 1/3 interest of a 1/16 overriding royalty interest in the Clyde- 5,000
Call #1 Well in the SE'4 of the SE/4 of Section 20, T-IO-N; R-3-E of the Indian
Meridian (containing an undivided 5.25 mineral acres)
2. Vested retirement, State of Oklahoma
3. Retirement, University of Oklahoma
35,000
6.650
ACCOUNTS AND BILLS DUE
1. MasterCard/VISA
8,100
REAL ESTATE MORTGAGE PAYABLE
1 . Nations Bank First mortgage on
322 Northwest 15th
Oklahoma City, Oklahoma 73103
First Oklahoma Bank
3. Pomona First Federal
Glendale Bank
5. Bank United of Texas
Second mortgage on
322 Northwest 15th
Oklahoma City, OK 73103
First mortgage on
5880 Ave. Juan Bautista
Riverside, California 92509
Third mortgage on
5880 Ave. Juan Bautista
Riverside, California 92509
First mortgage on
1301 Salem Avenue
Edmond, Oklahoma 73034
135,495
24,000
19,000
42,000
99,600
CHATTEL MORTGAGE AND OTHER LIENS
1. First Oklahoma Bank Van/Piano
19.000
577
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar Association's
Code of Professional Responsibility calls for "every lawyer, regardless
of professional prominence or professional workload, to find some time
to participate in serving the disadvantaged." Describe what you have
done to fulfill these responsibilities, listing specific instances and
the amount of time devoted to each.
While in private practice, I performed many legal services and offered
consultation on numerous occasions to persons who were unable to pay for
legal services. In a small town where ray practice was located, there was
no legal aid or other source for those poor people to turn to
(approximately 20 hours per month) . Also I served on the Oklahoma
Criminal Justice Center Board for four years, which supervised legal
assistance for the indigent. I have assisted Legal Aid of Western
Oklahoma in fund raising. Since becoming Dean of Oklahoma City
University School of Law, I have consulted with the Oklahoma County
Public Defender.
I have made numerous pro bono educational presentations covering legal
ethics, state government law, and jurisprudence. I have served on two
panels of ABA committees that complete final interviews for federal
administrative law judges.
This year my law school was awarded the "1993 Humanitarian Award" at the
annual convention of the Oklahoma Bar Association by the Pro Bono Section
of our Bar. The award was given to our Native American Legal Assistance
Clinic.
In addition, I am beginning a new intern program to help the Oklahoma
County District Attorney with misdemeanor cases. I have proposed to the
faculty a pro bono service requirement for students before graduation.
I have served on the boards of over a dozen charitable and philanthropic
organizations in the last fifteen years.
The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any
organization that invidiously discriminates on the basis of race, sex,
or religion. Do you currently belong, or have you belonged, to any
organization which discriminates — through either formal membership
requirements or the practical implementation of membership policies? If
so, list, with dates of membership. What you have done to try to change
these policies?
No
Is there a selection commission in your jurisdiction to recommend
candidates for nomination to the federal courts? If so, did it recommend
your nomination? Please describe your experience in the entire judicial
34
578
selection process, from beginning to end (including the circumstances
which led to your nomination and interviews in which you participated) ,
The Office of the Counsel to the President called me and told me that I
was being considered and invited me to complete the necessary forms.
Subsequently I was interviewed by the Office of Policy Development of the
Department of Justice and was investigated by the Federal Bureau of
Investigation and the American Bar Association.
Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any specific case, legal issue or question in a manner
than could reasonably be interpreted as asking how you would rule on such
case, issue, or question? If so, please explain fully.
No
Please discuss your views on the following criticism involving "judicial
activism. "
The role of the Federal judiciary with the Federal government, and within
society generally, has become the subject of increasing controversy in
recent years. It has become the target of both popular and academic
criticism that alleges that the judicial branch has usurped many of the
prerogatives of other branches and levels of government. Some of the
characteristics of this "judicial activism" have been said to include:
a. A tendency by the judiciary toward problem-solution rather than
grievance-resolution;
b. A tendency by the judiciary to employ the individual plaintiff as
a vehicle for the imposition of far-reaching orders extending to
broad classes of individuals;
c. A tendency by the judiciary to impose broad, affirmative duties upon
governments and society;
d. A tendency by the judiciary toward loosening jurisdictional
requirements such as standing and ripeness; and
e. A tendency by the judiciary to impose itself upon other institutions
in the manner of an administrator with continuing oversight
responsibilities.
My legal career has allowed me to serve for a decade in the
legislative branch and for over four years in the executive branch
of my state. I have an appreciation of these branches and their
responsibilities. I have also had the opportunity to work closely
with the judicial branch, both as chair of the House of
Representatives Committee on the Judiciary and as chair of the
Appropriations Subcommittee that made all judicial appropriations.
35
579
The judicial branch also has a separate and unique role that I
respect.
Judges should not be influenced by personal or political views.
Judges should avoid both legislation and administration. Because
of my familiarity with the other branches and their roles I am well-
prepared to constrain myself to follow the judicial role.
As a judge I would be mindful of the nature of judicial powers and
duties described in Article III, and would take special notice of
judicial restraints ("case or controversy," standing, jurisdiction,
political questions, etc.), as well as the responsibilities of stare
decisis. Within these constraints judges must keep the process open
to preserve the rights guaranteed to individual citizens by the
Constitution, the Bill of Rights, the other amendments, as well as
the mandates of Congress.
36
580
QUESTIONNAIRE FOR JUDICIAL NOMINEES
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full Name (include any former names used)
Deborah A. Batts
Deborah Anne Batts
2. Address: List current place of residence and office
address (es)
Residence: 315 West 106th Street Apt. 7A
New York, New York 10025
Office: Fordham University School of Law
140 West 62nd Street Room 427
New York, New York 10023
3. Date and Place of Birth
April 13, 1947
Philadelphia, Pennsylvania
4. Marital Status (include maiden name of wife, or husband's
name). List spouse's occupation, employer's nzune and
business address (es).
Divorced
581
5. Education: List each college and law school you have
attended, including dates of attendance, degrees received,
and dates degrees were granted.
Radcliffe College
Cambridge, Massachusetts 02138
1965-1969
A.B. June, 1969
Harvard Law School
Cambridge, Massachusetts 02138
1969-1972
J.D. June, 1972
6. Employment Record: List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or
employee since graduation from college.
582
CURRENT EMPLOYMENT EXPERIENCE
September, 1984 to present:
Associate Professor of Law
Fordham University School of
Law, New York, New York
PRIOR EMPLOYMENT EXPERIENCE
March, 1990 to January, 1991:
September 1979 to June 1984:
October, 1973 to July, 1979:
Special Associate Counsel of
the Department of
Investigation of the City of
New York
Assistant United States
Attorney, Criminal Division
Southern District of New York
Associate Attorney,
Cravath, Swaine & Moore
New York, New York
1972-1973
Law Clerk to the Honorable
Lawrence W. Pierce, (then)
United States District Judge,
Southern District of New York
SUMMER/ OCCASIONAL EMPLOYMENT
1988 to present
Summer 1971
Summer 1970
Summer 19 69
Faculty, Law Department, City
of New York, Corporation
Counsel Trial Advocacy Program
at Fordham University School
of Law
Summer Attorney
Kaye, Scholer, Fierman, Hays &
Handler
New York, New York
Summer Attorney
Foley, Hoag & Eliot
Boston, Massachusetts
Secretary
Foley, Hoag & Eliot
Boston, Massachusetts
583
7. Military Service: Have you had any military service? If so,
give particulars, including the dates, branch of service,
rank or rate, serial number and type of discbarge received.
Not Applicable
8. Honors and Awards: List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee
Recipient of Radcliffe College Jonathan Fay Award at
graduation, June, 1969.
9. Bar Associations: List all bar associations, legal or
judicial-related committees or conferences of which you are
or have been a member and give the titles and dates of any
offices which you have held in such groups.
The Association of the Bar of the City of New York
May, 198 3 to present
Second Circuit Federal Bar Council
May 1984 to present
Metropolitan Black Bar Association
1986 to present
Lesbian and Gay Law Association of Greater New York
April, 1993 to present
Except for the Association of the Bar of the City of New
York, where I serve actively on committees (see below) , my
other memberships listed above are dues-paying,
nonattendance status. This does not reflect disinterest on
my part for these worthy organizations, but merely lack of
time.
CURRENT COMMITTEE MEMBERSHIP Lesbians & Gay Men in the
Profession, Association of the
Bar of the City of New York
1991 to present
Committee on Matrimonial Law,
Association of the Bar of the
City of New York
September, 1993 to present
584
PAST COMMITTEE MEMBERSHIP
Ad Hoc Committee on AIDS,
Association of the Bar of the
City of New York
September, 1992 to February,
1993
Committee on Sex and Law,
Association of the Bar of the
City of New York
1989 to 1992
Nominating Committee,
Association of the Bar of the
City of New York
1991-1992 term
Family Law and Family Court,
Association of the Bar of the
City of New York
1983 - 1986
Central Screening Committee
for the 18-B Panel, Appellate
Division, First Department
1984 - 1987
Search Committee for Attorney-
in-Charge of the Criminal
Appeals Bureau, Legal Aid
Society
1985
10. Other Menberships: List all organizations to which you
belong that are active in lobbying before public bodies.
Please list all other organizations to which you belong.
I am currently an inactive member of the National
Association of Securities Dealers (NASD) Board of
Arbitrators, which may or may not lobby before public
bodies. I myself have done no lobbying.
CURRENT BOARD MEMBERSHIP
Member, NASD Board of
Arbitrators
1986 to present
Member, Board of Trustees,
The Spence School
New York, New York
1987 to present
585
Member, School Committee,
The Cathedral School
New York, New York
May, 1990 to present
11. Court Admission: List all courts in wbich you have been
admitted to practice, with dates of admission and lapses if
any such memberships lapsed. Please explain the reason for
any lapse of membership. Give the same information for
administrative bodies which require special admission to
practice.
BAR ADMISSIONS New York State Bar
March 19, 1973
Second Circuit Court of
Appeals
July 1, 1974
United States District Court
Southern District of New York
December 12, 1974
United States District Court
Eastern District of New York
December 24, 1974
Supreme Court of the United
States
May 1986
12. Published Writings: List the titles, publishers, and dates
of books, articles, reports, or other published material you
have written or edited. Please supply one copy of all
published material not readily available to the Committee.
Also, please supply a copy of all speeches by you on issues
involving constitutional law or legal policy. If there were
press reports about the speech, and they are readily
available to you, please supply them.
Batts, Remedy Refocus: In Search of Equity in "Enhanced
Spouse/Other Spouse" Divorces, 63 NYU L. Rev. 751 (1988)
Batts, I Didn't Ask to Be Born: The American Law of
Disinheritance and a Proposal for Change to a System of
Protected Inheritance, 41 Hastings L.J. 1197 (1990)
586
Committee Report, Sex and Law Committee, Association of the
Bar of the City of New York: Testimony and Legislative Draft
Revisions and Commentary Regarding New York Family Leave
Bill (1990).
Committee Report, Sex and Law Committee, Association of the
Bar of the City of New York: Second Parent Adoption in New
York State: Furthering The Best Interests of Our Children
(1992) .
13. Health: What is the present state of your health? List the
date of yoxur last physical exeunxnation.
I am in very good health. My last physical was in May, 1993.
14. Judicial Office: State (chronologically) any judicial
offices you have held, whether such position was elected or
appointed, and a description of the jurisdiction of each
such court.
Not Applicable
15. Citations: If you are or have been a judge, provide: (1)
citations for the ten most significant opinions you have
written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or
where your judgment was affirmed with significant criticism
of your substantive or procedural rulings; and (3)
citations for significant opinions on federal or state
constitutional issues, toghether with the citation to
appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, please provide
copies of the opinions.
Not Applicable
16. Public Office: State (chronologically) any public offices
you have held, other than judicial offices, including the
terms of service and whether such positions were elected or
appointed. State (chronologically) any unsuccessful
candidacies for elective public office.
April, 1990 to present: Commissioner, Law
Revision Commission,
State of New York
March, 1990 to January, 1991: Special Associate Counsel
of the Department of
Investigation of the City
of New York
587
September 1979 to June 1984;
Assistant United States
Attorney, Criminal
Division Southern
District of New York
All of the above positions were appointed.
17. Legal Career:
a. Describe chronologically your law practice and experience
after graduation from law school including:
1. whether you served as cleric to a judge, and if so, the
name of the judge, the court, and the dates of the period
you were a clerk;
1972-1973 Law Clerk to the Honorable Lawrence W. Pierce,
(then) United States District Judge, Southern
District of New York
2. whether you practiced alone, and if so, the addresses
and dates;
Not applicable
3. the dates, names and addresses of law firms, offices,
companies or governmental agencies with which you have been
connected, and the nature of your connection with each;
See below
1. What has been the general character of your law
practice, dividing it into periods with dates if its
character has changed over the years?
See below
2. Describe your typical former clients, and mention the
areas, if any, in which you have specialized.
October, 1973 to July, 1979:
Associate Attorney,
Cravath, Swaine & Moore
New York, New York
588
I was an associate in the litigation department, concentrating on
cases in antitrust, securities, administrative agency and libel
law. The firm's clients whose to cases I was assigned came from
a variety of industries, including entertainment, publication,
accounting, computer and government regulation.
September 1979 to June 1984:
Assistant United States
Attorney, Criminal Division
Southern District of New York
As an Assistant United States Attorney in the Major Crimes Unit
of the Criminal Division, I was responsible for the
investigation, prosecution at trial, and appellate briefing and
argument of cases involving international bank fraud,
international art theft, tax evasion cases, immigration cases,
armed bank robberies and bank embezzlements, and obstruction of
justice.
September, 1984 to present:
Associate Professor of Law
Fordham University School of
Law, New York, New York
I currently teach courses in Property and Domestic Relations Law.
SUMMER/ OCCASIONAL EMPLOYMENT
March, 1990 to January, 1991:
Special Associate Counsel of
the Department of
Investigation of the City of
New York
1988 to present
Faculty, Law Department, City
of New York, Corporation
Counsel Trial Advocacy Program
at Fordham University School
of Law
I have taught in this Program for one week each summer as
indicated. In 1989, I was the Director of the Program.
Summer 1971
Summer Attorney
Kaye, Scholer, Fierman, Hays &
Handler
New York, New York
589
Summer 1970 Summer Attorney
Foley, Hoag & Eliot
Boston, Massachusetts
Summer 1969 Secretary
Foley, Hoag & Eliot
Boston, Massachusetts
c. 1. Did you appear in court frequently, occasionally or not
at all? If the frequency of your appearances in court
varied, describe each such variance, giving dates.
2. What percentage of these appearances was in:
(a) federal courts;
(b) state courts of record;
(c) other courts.
3. What percentage of your litigation was:
(a) civil;
(b) criminal.
4 . State the number of cases in courts of record you tried
to verdict or judgment (rather than settled) , indicating
whether you were sole counsel, chief counsel, or associate
counsel.
5. What percentage of these trials was:
(a) jury
(b) non-jury.
The only time I appeared in court on a frequent basis was
during my tenure as an AUSA in the SONY from September, 1979
through June, 1984. All of these appearances were in
federal court; all of these appearances were on criminal
matters. I appeared on all aspects of the cases assigned to
me, including pre-trial conferences, hearings, motion
argument, guilty pleas, briefing and arguments before the
Second Circuit, where applicable.
Eight trials were jury trials; one was nonjury. I was
sole or chief counsel on all but one. All of the trials
but one went to verdict.
18. Litigation: Describe the ten most significant litigated
matters which you personally handled. Give the citations,
if the cases were reported, and the docket number and date
if unreported. Gie a capsule summary of the substance of
each case. Identify the party or parties whom you
590
represented; describe in detail the nature of your
participation in the litigation and the final disposition of
the case. Also state as to each case:
(a) the date of representation;
(b) the name of the court and the nzune of the
judge or judges before whom the case was
litigated; and
(c) The individual name, addresses and telephone
numbers of co-counsel and of principal counsel for
each of the other parties.
During my tenure as an AUSA in the SONY I tried 9 cases.
All of them were in the SONY and in each instance I
represented the United States. I was sole or chief counsel
on all but one. All of the trials but one went to verdict.
All were jury trials except United States v Mendel. 83 Cr.
63 (WK) .
I was not able to get current addresses and telephone
numbers for all defense counsel. Addresses and telephone
numbers, where supplied, are, to my knowledge and resources,
the best available information.
United States v Grovell. 79 Cr. 635 (HFW) . This trial took
place before the Hon. Henry W. Werker October 9, 11-12,
1979. The defendant Jessie Grovell was charged with bank
larceny and aiding and abetting the robbery of a bank where
she was a teller. The chief witness against her was the
actual robber. The trial ended in a hung jury.
Defense Counsel; Larry Kessler, Esq.
Hofstra Law School
Hempstead, New York 11550
(516) 560-5894
United States v Krasnoff et al. S79 Cr 498 (KTD) This large
seven defendant trial of the owner and employees of a drug
treatment center in the Bronx for selling prescriptions
illegally for controlled substances Valium, tuinal and
elavil was tried before the Hon. Kevin T. Duffy from January
28, 1980 to February 25, 1980. The case ended in a guilty
plea by all defendants during the course of the trial. I
was the third "seat" of three AUSA's prosecuting the case; I
examined one witness and defended the cross examinations of
that witness.
10
591
Co-Counsel;
Defense Attorneys;
Dominic F. Amorosa, Esq.
233 Broadway Suite 3008
New York, New York
(212) 406-7000
Peter M. Bloch, Esq.
New York City Regional Director
Deputy Attorney General
Medical Fraud Control
270 Broadway, 21st Floor
New York, New York 10007
(212) 587-5389
Jeffrey Hoffman, Esq. (Krasnoff)
Hoffman & Pollok
260 Madison Avenue
New York, New York 10022
(212) 679-2900
Lawrence Herrmann, Esq.
23 3 Broadway
New York, New York 10007
(212) 964-5333
David Bernheim, Esq. (Hermon)
299 Broadway
New York, New York 10007
Bert H.Nisonoff, Esq. (Yeu)
118-21 Queens Blvd.
Forest Hills, New York
(718) 261-3000
John L.Kase, Esq. (Caioli)
1501 Franklin Avenue
Mineola, New York 11501
United States v Aronson. S80 Cr 22 (CES) . This case was
tried before the Hon. Charles E. Stewart on September 22 -
29, 1980. The defendant Renee Aronson was charged with
obstructing justice and threatening witnesses in the
criminal investigation and trial of United States v Krasnoff
et__al, supra . The defendant was acquitted.
Defense Attorney;
John Ciampa, Esq.
785 West End Avenue
New York, New York 1002 5
(212) 663-6429
11
592
United States v Deinvan. 80 Cr. 745 (LPG) . This case was
tried before the Hon. Lee P. Gagliardi on January 5-7, 1981.
The defendant John Demyan, part owner of Demyan's Hofbrau
restaurant in Staten Island, was charged with SBA fraud for
filing false claims for losses allegedly suffered during the
blackout of 1977. The defendant was convicted.
Defense Attorney; John J. Quinn, Esq.
43 New Dorp Plaza
Staten Island, New York
(718) 351-0499
United States v Copeland. Penderqrass. 81 Cr. 693 (CLB) . The
two defendants were charged and convicted of armed bank
robbery before the Hon. Charles L. Brieant on December 14-
18, 1981.
Defense Attorneys: Norman Arnoff, Esq. (Copeland)
Arnoff & Siskind P.C.
342 Madison Avenue
New York, New York
(212) 697-2380
Steven Wise, Esq. (Pendergrass)
260 Madison Avenue
New York, New York
(212) 684-2213
United States v Mave. S82 Cr. 24 (JMC) . The defendant Sidney
Haye was charged and convicted of armed bank robbery before
the Hon. John M. Cannella on April 5-6, 12-14, 1982.
Defense Attorney: Herbert Olan Brown, Esq.
53 Seawane Road
East Rockaway, New York 11518
(516) 887-2711
United States v Rodrique. Henry. 82 Cr.209 (HFW) . This was
a multi-defendant conspiracy, embezzlement, perjury case
involving many employees of the Federal Reserve Bank of New
York who embezzled thousands of dollars in Susan B. Anthony
dollars and quarters. By the time of trial, all but two of
the defendants had pleaded guilty. The case was tried
before the Hon. Henry F. Werker on July 6-12, 1982;
defendant Henry was acquitted of the two counts in which he
was charged; defendant Rodrigue was acquitted on two of the
counts of the charging indictment and convicted on six
counts .
12
593
Defense Attorneys;
Leonard Levenson, Esq. (Rodrigue)
11 Park Place
New York, New York 10007
(212) 732-0522
Howard Mulholland, Esq.
ADDRESS NOT AVAILABLE
(Henry)
United States v Boulanger. 82 Cr. 469 (ADS) : Warren
Boulanger, an attorney and justice of the peace, was charged
and convicted of tax evasion for 1975-77 for not reporting
as income moneys he had embezzled from a client. The trial
was before the Hon. Abraham D. Sofaer, September 20-29,
1982.
Defense Attorneys;
Raymond M. Pezzo, Esq.
19 Davis Avenue
Poughkeepsie, New York 12 603
(914) 452-1040
Gerald A. Vergilis, Esq.
266 Main Street
Fishkill, New York 12524
United States v Mendel. 83 Cr. 63 (WK) . This was a nonjury
trial before the Hon. Whitman Knapp which was tried
periodically between June 27 and July 18, 1983. Defendant
Mendel and his corporation were charged and convicted of
making and filing false statements with the Department of
Agriculture alleging cows shipped in interstate and foreign
commerce had been tested for the disease brucellosis and TB,
when in fact blood from two bulls had been substituted for
testing.
Defense Attorney:
Robert G. Morvillo, Esq.
Morvillo, Abramowitz, Grand, lason &
Silberberg, P.C.
565 Fifth Avenue
New York, New York 10017
(212) 856-9600
13
594
For the convenience of the Committee, I am enclosing a list of
attorneys that I have worked with professionally more recently
than those listed above.
Law Revision Commission:
Carolyn Gentile, Esq. Chair, (1990-93)
451 Park Avenue South 6th Floor
New York, New York 10016
(212) 686-6112
Professor Robert M. Pitler, Chair (1993 to present)
Brooklyn Law School
250 Joralemon Street
Brooklyn, New York 11201
(718) 780-7952
Association of the Bar of the City of New York
John D. Feerick, President (1992-94)
Fordham University School of Law
140 West 62nd Street
New York, New York 1002 3
(212) 636-6875
Jane E. Booth, Chair (1991-93)
Committee on Sex and Law
The Legal Aid Society
Civil Appeals and Law Reform Unit
11 Park Place, Room 1805
New York, New York 10007
(212) 406-0745
Professor Arthur Leonard, Co-Chair
Special Committee on Lesbians and Gay Men in the Profession
New York Law School
57 Worth Street
New York, New York 10013-2960
(212) 431-2156
Hon. Joan B. Lobis. Co-Chair
Special Committee on Lesbians and Gay Men in the Profession
60 Centre Street
New York, New York 10007
(212) 374-8383
Professor John De Witt Gregory, Chair
Committee on Matrimonial Law
Hofstra University School of Law
121 Hofstra University
Hempstead, New York 11550-1090
(516) 463-5051
14
595
Law Department City of Hew York
Linda Howard, Esq.
Admin. Asst. Corporation Counsel
100 Church Street
New York, New York 10007
(212) 788-1100
Larry Levy, Esq.
Senior Litigator
Corporation Counsel
100 Church Street
New York, New York 10007
(212) 788-0400
Special Counsel, Department of investigation
Elkan Abramowitz, Esq.
Morvillo, Abramowitz, Grand, lason & Silberberg, P.C.
565 Fifth Avenue
New York, New York 10017
(212) 856-9600
19. Legal Activities: Describe tbe most significant legal
activities you have pursued, including tbe most significant
litigation which did not progress to trial or legal matters
that did not involve litigation. Describe the nature of
your participation in this question, please omit any
information protected by the attorney-client privilege
(unless the privilege has been waived) .
Associate Professor of Law
I currently am a full-time associate professor of law, and
have been so since 1984. While I currently teach courses in
the areas of Property and Domestic Relations, in 1987, I
developed and taught for several years here at Fordham a
course in Federal Criminal Pre-Trial Procedure.
I have been on the faculty of the Northeast Regional
National Institute of Trial Advocacy (NITA) training program
for attorneys and for students at Hofstra Law School on Long
Island and was invited to participate for several years in
the mandatory intensive trial program for students at Emory
Law School in Atlanta, Georgia. I was an Assistant Team
Leader in the National NITA program for lawyers in Boulder,
Colorado in July, 1991.
15
596
Law Revision Commission
April, 1990 to present, I have been one of five
Commissioners on the Law Revision Commission for the State
of New York. The Law Revision Commission was created in the
1930 's in the Executive Branch, to study the laws of the
State, and to propose additions, revisions, deletions,
amendments to the State Legislature. The Commission meets
regularly on a monthly basis throughout the year and has a
small staff of attorneys in Albany, New York who do much of
the research and drafting for the Commissioners.
Department of Investigations, City of New York
March, 1990 to January, 1991, I was one of three Special
Associate Counsel of the Department of Investigation of the
City of New York, working with Elkan Abramowitz, Esq. who
was the Special Investigator of the DOI hired to investigate
and recommend action on allegations that Mayor David N.
Dinkins of New York had neglected to file appropriate tax
returns regarding an alleged gift he made to his son during
his mayoral campaign. The investigation concluded that
sufficient evidence to meet the criminal standard of proof
could not be obtained and the matter was referred to the
Internal Revenue Service.
Nontrial Litigation
As an AUSA, there were several major grand jury
investigations that I was in charge of, including
international bank fraud, international art theft, tax
evasion and immigration fraud and conspiracy cases. As the
AUSA, I was responsible for directing the investigation by
the various federal agents, preparing grand jury witnesses
and exhibits, determining what charges to present, drafting
the indictments. Many cases ended in guilty pleas after
indictment; some ended in guilty pleas prior to indictment,
by information.
16
597
A
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated receipts
from deferred income arrangements, stock, options,
uncompleted contracts and other future benefits which you
expect to derive from previous business relationships,
professional services, firm memberships, former employers,
clients, or customers. Please describe the arrangements you
have made to be compensated in the future for any financial
or business interest.
Future Benefits
As a fulltime professor of law, I have participated in the
TIAA-CREF pens ion/ retirement plan since October, 1984. I
believe that this can be paid out without penalty beginning
approximately at age 60.
I am a fulltime salaried employee of Fordham University. I
do not have other sources of income, deferred income
arrangements, stock or options or uncompleted contracts.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the categories
of litigation and financial arrangements that are likely to
present potential conflicts of interest during your initial
service in the position to which you have been nominated.
Conflicts of Interest
I have savings, checking and money market accounts at
various financial institutions. In the event that those
particular institutions are parties in litigation, and that
fact alone would present a conflict of interest, I would
follow the appropriate procedure, including recusal, as set
out by the Guidelines for the Code of Judicial Conduct.
Do you have any plans, commitments or agreements to pursue
outside employment, with or without compensation, during
your service with the court? If so, explain.
Outside Employment
I would like to teach on an adjunct basis, for which I would
be compensated.
List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
17
(
598
interest, gifts, rents, royalties, pataents, honoraria, and
1 other items exceeding $500 or more (If you prefer to do so,
copies of the financial disclosure report, required by the
Ethics in Government Act of 1978, may be substituted here.)
\
Sources and Amounts of Income 1993-94
See Financial Disclosure Report
5. Please complete the attached financial net worth statement
in detail (Add schedules as called for) .
See attached
Have you ever held a position or played a role in a
political campaign? If so, please identify the particulars
of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
Not Applicable
18
599
FINANCIAL STATEMENT
NET WORTH
Provide s complete, current financial net worth stitement which itemizcj in detail
all aiscts (includLng bank accounts, real estate, jecuiities, trusts, investments, and other financial
holdings) all liabilities (Including debts, mongages, loans, and other financial obligations) of
yourself, your spouse, and other immediate memben of your household.
1 ASSETS
UABIUTTES
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7
$^»
I
ll Du« tnm rdillvif ud friwtdi
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Do« bom othen
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Doubtful
^&
000
CO
Real ctlal* men{e|e( ptytble-edd
idieduU
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^a?
t
.VJ)
Qffi
A
abb
g Kcil MUie mon«tia necivtUt
Other debU~i(eniix«:
{{ Aulot uii other penooil property
1
rf«
60
\/(S/)
.\/yr>
|i Cub vilue-lif« iAtsnnca
Firt£itx<i*^ ^t^-i-4
?,
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I
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T7Rft-CPtf
223
^*
,«>/?
/
M"
Total lUbilitiae
■W
at>
i
Net Worth
,?7??
,p2.
t
1 Total AsstU
<fTf
iSi^
V
Total liabilities and rtet «orth
1 CO.NTINCENT UABnjIlES
OENEKAL INFORMATION
As eodoTMr, eomtker or guuiator
Are toy axsctf plcdied? (Add (ched>
luo
On liuet or conlncU
Ar* yea deftadant ir. aey toils or U|al
acdoint
Wf?
1
Lcg«lC!aIini
A6
aeo
^
^0
Provitiea tat TtOttti Imoo* T«
Odwr ipecii] debt
600
FIWANCIAL STATEMENT
NET WORTH SCHEDULE
Cash on Hand
Included in thic amount is $28,431.29, which is the remainder of
the gross proceeds from the sale of two cooperative apartments on
April 15 and June 2, 1993. These apartments were sold pursuant to
the Property Settlement Agreement between me and my ex-husband,
signed in April, 1988. The proceeds of the sale of these
apartments are to be used to make child support payments; my ex-
husband has not made his payments since June, 1992. The proceeds
are to be applied to pay back the funds used in lieu of his child
support payments, since June, 1992 and to make monthly child
support payments until exhausted.
U.S. Government Securities
The children's paternal grandmother in 1991 bought U.S. zero coupon
bonds in the amount of approximately $10,000.00 for each of the
children. The accounts are in their social security numbers but
she is in control of the bonds; I do not have them, nor have access
to them.
Additionally, my daughter has $2,000.00 in Treasury Bonds, which
pay interest.
I do not have any government securities.
Real Estate Owned
The children and I currently live in a 3 bedroom cooperative
apartment which was purchased in September, 1984, for $365,000.00.
There is a substantial mortgage on this property (approximately
$226,000.00)
February 17, 1994
601
III GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some time to participate in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances
and the amount of time devoted to each.
Public Service
I have been in the public sector fulltime since 1979, when I
became an AUSA in the SONY. I have been teaching fulltime,
and not practicing law since 1984, when I joined the law
faculty at Fcrdham University.
As indicated earlier, I am and have been on committees and
boards of various nonprofit educational and legal
organizations. In addition to serving currently on the Board
of Trustees of the schools which my children currently
attend, I was parent trustee of Early Steps, an organization
formed to increase minority enrollment in the primary grades
of New York independent schools. Two boards that I have been
involved in, but no longer am, are organizations that deal
directly with troubled youth (Berkshire Farm Center and
Services for Youth) or abused women with children (Sanctuary
for Families) .
CURRENT BOARD MEMBERSHIP
Member, National Association of
Securities Dealers (NASD) Board of
Arbitrators
1986 to present
Member, Board of Trustees,
The Spence School
New York, New York
1987 to present
Member, School Committee,
The Cathedral School
New York, New York
May, 1990 to present
CURRENT COMMITTEE MEMBERSHIP
Lesbians & Gay Men in the
Profession, Association of the Bar
of the City of New York
1991 to present
19
602
Matrimonial Law Committee,
Association of the Bar of the City
of New York
July, 1993 to present
PAST BOARD MEMBERSHIP
Member, Board of Directors,
Sanctuary For Families
New York, New York
December, 1991 to February,
1993
Parent Member,
Board of Trustees,
EARLY STEPS
1986 to May, 1990
Member, Board of Directors
Berkshire Farm Center and Services
for Youth
1985 - 1987
Member, Board of Trustees,
The West Side Montessori School
New York, New York
1982 - 1985
Member, Board of Trustees
Radcliffe College
Cambridge, Massachusetts
1970 - 1981
PAST COMMITTEE MEMBERSHIP
Ad Hoc Committee on AIDS,
Association of the Bar of the City
of New York
September, 1992 to February, 1993
Committee on Sex and Law,
Association of the Bar of the
City of New York
1989 to 1992
Nominating Committee, Association
of the Bar of the City of New York
1991-1992 term
Family Law and Family Court,
Association of the Bar of the City
of New York
1983 - 1986
20
603
Central Screening Conunittee for the
18-B Panel, Appellate Division,
First Department
1984 - 1987
Search Committee for Attorney-in-
Charge of the Criminal Appeals
Bureau, Legal Aid Society
1985
The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a judge
to hold membership in any organization that invidiously
discriminates on the basis of race, sex, or religion. Do
you currently belong, or have you belonged, to any
organization which discriminates - through either formal
membership requirements or the practical implementation of
membership policies? If so, list, with dates of membership.
What you ha e done to try to change these policies?
I was a member of Jack and Jill of America, Inc, a national
organization of black mothers, from 1986-1991. I do not
feel that the membership qualifications resulted in
invidious discrimination, but served what I saw as the main
purpose of the organization, which was to instill a sense of
identity and support in black children.
Is there a selection commission in your jxirisdiction to
recommend candidates for nomination to the federal courts?
If so, did it recommend your nomination? Please describe
your experience in the entire judicial selection process,
from beginning to end (including the circumstances which led
to your nomination and interviews in which you
participated) .
Initial Interview and Nomination; Committee on the
Judiciary, Bar Association of the City of New York
In December, 1990, I was contacted by a representative of
Senator Moynihan's Judicial Screening Panel and asked if I
would be interested in submitting an application for
consideration for a district court judgeship. I did. I
subsequently met with that committee in January, 1991, which
forwarded my name to Senator Moynihan. I met with Senator
Moynihan in February, 1991, and in early March, 1991, he
forwarded my name to then President Bush for a district
court judgeship on the Southern District of New York.
21
604
Between April and October, 1991, I was interviewed on three
separate occasions by several members of the Department of
Justice. After Senator Moynihan submitted my name to
President Clinton in January, 1993, I was sent forms by the
Of flea of White House Counsel in March, 1993, and
interviewed by representatives of the Department of Justice,
the Office of White House Counsel, and the Attorney
General's Office in July, 1993. There was subsequent
correspondence and submissions by me to both the DOJ and
Senator Moynihan' s staff.
When Senator Moynihan had initially submitted my name for
consideration to then President Bush in March, 1991, I was
interviewed and approved by the Committee on the Judiciary,
Association of the Bar of the City of New York, in April,
1991.
When Senator Moynihan submitted my name to President Clinton
in January, 1993, I was again contacted by the Committee on
the Judiciary. I appeared before them again in November,
1993, and was again approved by them at that time.
Also in November, 1993, I was interviewed and had telephone
conversations with Special Agents of the Federal Bureau of
Investigation. I was also interviewed in November, 1993, by
a representative of the Standing Committee on Federal
Judiciary, American Bar Association.
4. Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
interpreted as asking how you would rule on such case,
issue, or question? If so, please explain fully.
Not applicable.
5. Please discuss your views on the following criticism
involving "judicial activism".
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism
that alleges that the judicial branch has usurped many of
the prerogatives of other branches and levels of government.
Some of the characteristics of this "judicial activism" have
been said to include:
22
605
a. A tendency by the judiciary toward problem-solution
rather than grievance-resolution;
b. A tendency by the judiciary to employ the individual
plaintiff as a vehicle for the imposition of far-
reaching orders extending to broad classes of
individuals;
c. A tendency by the judiciary to impose broad,
affirmative duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
e. A tendency by the judiciary to impose itself upon other
institutions in the manner of an administrator with
continuing oversight responsibilities.
It is clear to me that abrogation of power or abuse of any
responsibility by any member of the judicial, executive or
legislative branch of government is, of course, wrong, and
not to be condoned in a democratic society that was founded
and is still dependent on the concept of separation of
powers. Separation of powers is the foundation which
justifies the trust and authority given to our government by
our society.
However, appropriate judicial action in cases where the •»
facts, as presented by the parties, require judicial
resolution, either by following or interpreting precedent,
or intrepreting or enforcing the laws as passed by Congress,
is the proper role of the judiciary.
It is most unlikely that, during one's judicial career, a
judge will be confronted with a case which requires judicial
innovation. When a matter is ripe and properly before a
court, and precedent and/or existing laws may not have been
previously considered in that context, the judge might well
consider whether interpretation and application of precedent
or existing law could provide for the resolution of the
matter. For any parties genuinely aggrieved by the court's
action, our judicial system provides appropriate appellate
review. For any nonparties who feel aggrieved by the
resultant precedent, there is always recourse through
Congress and its lawmaking role.
23
606
K-^Lrntir\ R- SajtS ^ , do ow««r that
the~inio2TOation provided in this statement is, to the best of
my knowledge, true and accurate.
Mrauy^^ /^^^A{ <fe^
/fjtn, -v^- ^ ~- '^ U^-^t ^n^-^-
{ NOTARY)
'■■'■ ■;;:i.vVc.
f^--- I L.....:C; [j^;.l.:jJ,i'jCj^
607
ANSWERS TO
QUESTIONNAIRE FOR JUDICIAL NOMINEES
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full ncune (include any former names used.)
Raymond Lawrence Finch
2. Address: List current place of residence and office
address (es) .
Home: 4B Estate Solitude
Christiansted, St. Croix
Virgin Islands 00820
Office: RFD-2, Box 9000
Kingshill, St. Croix
Virgin Islands 00851
3. Date and place of birth.
October 4, 194 0
Christiansted, St. Crcix, Virgin Islands
I. Marital Status (include maiden n£une of wife, or husband's
neune) . List spouse's occupation, employer's name and businesE
address (es) .
Divorced .
Education: List each college and law school you have
attended, including dates of attendance, degrees received,
and dates degrees were greUited.
Howard University: September 1958 - June 1962,
B.A. degree, June 1962; Howard University School of Law:
August 1962 - June 1965, LL.B., June, 1965.
Judicial Conferences attended:
American Academy of Judicial Education Seminar:
"Trial Judges Academy" August 8-20, 1976 in
Charlottesville, Virginia.
608
Page 2
National Judicial College, University of Nevada, Reno
October 1976 Criminal -Evidence Seminar
October 1977 Criminal -Evidence Seminar
October 1978 Criminal -Evidence Seminar
October 1978 Criminal -Evidence Seminar
American Academy of Judicial Education Seminar:
"The Practicalities of Judging; Jurisprudence
and the Humanities" . Harvard University - June
1978.
Rmrloyment Record: List (by year) all business or professional
corporations, companies, firms or other enterprises,
partnerships, institutions and organizations, nonprofit or
otherwise, including finns, with which you were connected as an
officer, director, partner, proprietor, or employee since
graduation from college.
1976 - Present Judge, Territorial Court of the
Virgin Islands; Judge, Appellate
Division, U.S. District Court of the
Virgin Islands; served by Special
Designation as Judge of the U.S.
District Court of the Virgin Islands
several times 1976-1977; October
1988 to July 1989; Acting Presiding
Judge, Territorial Court of the
"irgin Islands, July 23 - August 17,
1978; . Judge, Municipal Court of the
Virgin Islands.
1975 - 1971 Partner in law firm of Hodge, Sheen,
Finch and Ross .
1970 - 1969 Law clerk in firm of Hodge & Sheen.
1969 - 1966 United States Army; entered as First
Lieutenant, attained remk of Captain.
1966 - 1965 Law clerk. Municipal Court of the
Virgin Islands.
1965 - 1963 Summer positions during law school
included such jobs as temporary
deputy marshal with U.S. Justice
Department and stock clerk with the
Virgin Islamds Corporation.
609
Page 3
7. Military Service: Have you had any military service? If so,
give particulars, including the dates, branch of service, rank
or rate, serial number and type of discharge.
Yes. September 25, 1966 - October 15, 1969
Armor; detailed; JAGC; Captain; 680096953;
Inactive Reserve.
Discharged honorably October 15, 1969.
8. Honors amd Award: List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Coimnittee.
Marouis WHO'S WHO Hi AMF.PICA (1978 to present)
PERSONALITIES OF THE SOUTH (19'78-79)
ARMY COMMENDATION MEDAL December 1968
NATIONAL DEFENSE SERVICE MEDAL
VIETNAM SERVICE MEDAL
VIETNAM CAMPAIGN MEDAJ. W/60 DEVICE
BRONZE STAR MEDAL
TWO OVERSEAS BARS
9. Bar Associations: List all bar associations, legal or
judicial-related committee or conferences of which you are or
h-ve been a member and give the titles and dates of any offices
which you have held in such groups .
Bar membership - United States Court of Appeals for
the Third Circuit
District Court of the Virgin
Islands
Professional
Association - American Bar Association
American Judges Association
American Judicature Society
National Bar Association
10
Other Memberships: List all organizations to which you belong
that are active in lobbying before pxiblic bodies. Please list
all other organizations to vrtiich you belong.
Lobbying : None .
Other: " St. Croix Radio Clxib
610
Page 4
11. Court Admission: List all courts in which you have been
admitted to practice, with dates of admission auid lapses if
any such memberships lapsed. Please explain the reason for
any lapse of membership. Give the Scime information for
administrative bodies which require special admission to
practice.
United States District Court of the Virgin Islands:
December 1970; Third Circuit Court of Appeals:
January 1976.
12. Published Writings: List the titles, publishers, auid dates of
books, articles, reports, or other published material you have
written or edited. Please supply one copy of all published
material not readily available to the Committee. Also, please
supply a copy of all speeches by you on issues involving
constitutional law or legal policy. If there were press
reports about the speech, and they are readily available to
you, please supply them.
None.
13. Health: What is the present state of your health? List the
date of your last physical examination.
Excellent. February 1991.
14. Judicial Office: State (chronologically) any judicial offices
you have held, whether such position was elected or appointed,
and a description of the jurisdiction of each such court.
Judge, Appellate Division, United States District Court
of the Virgin Islands.
Judge by Special Designation, United States District
Court of the Virgin Islands. Judges of the Territorial
Court were designated to sit as judges of the U.S.
District Court of the Virgin Islands by the Chief Judge
of the Third Circuit Court. This was required due to the
vacancy which occurred when Judge Warren H. Young died.
I sat by special designation during the following
periods: April, July and October 1976; December 10, 13,
15, 22 and 29, 1976; February, May, August and November
1977; October, November and December 1980; emd August
26 through September 30, 1982, October 7, 1985 through
611
Page 5
October 11, 1985.
Judge, Territorial Court of the Virgin Islands,
Division of St. Croix, Kingshill, St. Croix,
Virgin Islands.
I was appointed to the Municipal Court of the Virgin
Islands in February, 1976 for a term of four years and
served as a judge therein lor a period of one year.
Since the name of the court was changed to l he
Territorial Court of the Virgin Islands, my judicial
appointmeni: was by the then 'Governor, Cyril E. King, now
deceased. i liave had subsequent appointments since then,
to-wit, in 1980 I was appointed by Governor Juan Luis for
six-year term; in T 986 I was reappointed by Governor
Luis for another six-year term; in 1992 I was
reappointed by Governor Alexander A. Farrelly for a six-
year term.
The Municipal Court had jurisdiction over juvenile
matters, traffic, small claims wherein the claim involved
did not exceed $500,00, criminal cases wherein the
maximum sentence that migiit be imposed did not exceed
imprisonment for one year, and civil cases wherein the
amount in controversy did not exceed $10,000.00.
On January 1, '^977, the Muni.cipal Court of the Virgin
Islands became the Territori.-l Court of the Virgin
Islands. All judges of the Municipal Court became judges
of the Territorial Court pursuant to legislation. I have
served as a ]udge of the Territorial Court since 1977. I
am presently serving my fourth term.
The Territorial Court has jurisdiction over juvenile
matters, traffic, small claims wherein the claim involved
does not exceed $5,000.00, divorce, annulment and
separation procedures, support cases, adoptions,
guardianship matters, probate matters, criminal cases
wherein the maximum period of confinement does not exceed
fifteen years, and civil cases wherein the amount in
controversy does not exceed $ 200,000.00.
Effective January 1, 1994, the Territorial Court has
unlimited civil jurisdiction in civil cases and full
jurisdiction in criminal cases.
From February 1980 to the present, I have been the
administrative representative on St. Croix for the
Presiding Judge. As such, my duties have included the
administration of all court matters on St. Croix
612
Page 6
inclusive of but not limited to, overseeing of all
personnel and the contracting for service jobs and
equipment required by the court . In the interest of
judicial expediency and fiscal responsibility, I have
completely revamped the court schedules since assuming my
administrative responsibilities.
15. Citations: If you are or have been a judge, provide: (1)
citations for the ten most significant opinions you have
written; (2) a short summary of citations for all appellate
opinions where your decisions were reversed or where your
judgment was affirmed with significeuit criticism of your
substantive or procedural rulings; am.d (3) citations for
significcoit opinions on federal or state constitutional
issues, together with the citation to appellate court rulings
on such opinions. If any of the opinions listed were not
officially, please provide copies of the opinions.
Boiling v. Commissioner of Education and The Board of
Education, 14 V.I. Ill (Terr. Ct . St.C. 1977).
Andrew v. Carvalho. 14 V.I. 513 (Terr. Ct . St.C. 1978).
Virgin Islands Urban Renewal Board v. George. 13 V.I. 473
(Terr. Ct . S. C. 1977) .
In Re Lee. 13 V.I. 1D5 {Mun. Ct . St.C. 1976).
Rouss v. Government of the Virgin Islands. 13 V.I. 203
(Terr. Ct . St. C. 1977) .
Williams vs. Williams. Civ. No. 932/1978, (Terr. Ct . St.
C. 1979) .
FDIC V. Creaue. Civ. No. 1396/1977 (Terr. Ct. St. C,
file July 31, 1979) .
Goodwin v. Goodwin. 23 V.I. 80 (Terr. Ct . St. C. 1987).
Government v. Rodriguez. 23 V.I. 386 (Terr. Ct. St. C.
1988) .
In the Matter of Svlvie Alison. D.Ct.V.I. 249/1985,
(Terr. Ct.St.C.Fam. No. C18/1983) (App. Div. U.S.D.Ct.
1990) .
15.(2) Linda Garrawav v. Dr. Chester Copeman. Dist . Ct . No.
1992-0078, (Feb. 1994) . Reversed in part, affirmed in
part . The reversal came about because of an award of
613
Pag?
$500.00 in damages as cost of a deposition which never
occurred.
15 (3) Tn ^hp Matter of Svlvie Allison, Dist . Ct . V.I. No.
249/1985 (Terr .Ct .St .C. Fam . No. C18/1983), (App. Div .
U.S.D.C. 1990) .
16. Public Office: State (chronologically) any public offices you
have held, other than judicial offices, including the terms of
service and whether such positions were elected or appointed.
State (chronologically) any unsuccessful candidacies for
elective public office.
None .
17. Legal Career:
a. Describe chronologically your law practice and
experience after graduation from law school
including:
1. whether you served as a clerk to a judge, and if
so, the name of the judge, the court, and the
dates of the period you were clerk;
2. whether you practiced alone, and if so, the
addresses and the dates;
3. the dates, names and addresses of law firms or
offices, companies or governmental agencies with
which you have been connected, and the nature of
your connection with each;
After my graduation from law school and until August
1966, I was a law clerk in the Municipal Court of the
Virgin Islands. I clerked for former judges Alexander A.
Parrel ly and Antoine L. Joseph and the late Cyril
Michael . During my tenure as a law clerk I did extensive
legal research and analysis and drafted many advisory
opinions for the judges mentioned.
In September 1966 I left St. Croix to report to active
duty in the U.S. Army. My ranking upon entry was that of
First Lieutenant. I was assigned to the Second Armored
Cavalry Regiment, headquartered in Hamburg, Germany.
After a tour of duty in Germany, I was assigned to duties
in the Republic of Vietnam.
While in the Army my duties were varied and extensive.
614
Page 8
In Vietnam, I was assigned to the office of the Staff
Judge Advocate, H/Q IIFFV. In that capacity I served
essentially with the Office of the Staff Judge Advocate,
performing the following functions: adjudicated claims
of United States personnel and Vietnamese Nationals;
appeared before Elimination Boards as an advocate;
appeared as advocate in Article 15 Hearings; appeared as
an advocate in Article 32 Investigations.
In October 1969 I returned to St. Croix and was employed
as a law clerk by the firm of Hodge & Sheen located at
#46-47 Company Street, Chr: stiansted, St. Croix, Virgin
Islands. I was employed in the stated capacity until
December 1970. During this employment I did much legal
research and analysis, drafted pleadings, and prepared
legal memoranda and tria] briefs. I also did investi-
gative reporting on cases and otherwise generally
assisted the lawyers in their trial preparations.
I have never practiced alone.
In December of 1971 I became a partner in the firm of
Hodge, Sheen & Finch located at #46-47 Company Street,
Christiansted, St. Croix, Virgin Islands. I remained a
partner of the aforementioned law firm until February
1976.
In February 1976 I was appointed to the Municipal Court
bench in the Virgin Islands.
b. 1. What has been the general character of your law
practice, dividing it into periods with dates if
its character has chimged over the years?
After my graduation from law school and until
August 1966, I was a law clerk in the Municipal
Court of the Virgin Islands. I clerked for former
judges Alexander A. Parrel ly eUid Antoine L. Joseph
and the late Cyril Michael. During my tenure as a
law clerk I did extensive legal research and
analysis and drafted many advisory opinions for the
judges mentioned.
In September 1966 I left St. Croix to report to
active duty in the U.S. Army. My ranking upon
entry was that of First Lieutenant. I attained
the rank of Captain before being honoreibly
discharged.
615
Page 9
While in Che Army my duties were varied and
extensive .
In October 1969 1 returned to St. Croix and was
employed .^r. a law clerk by the firm of Hodge & Sheen
located at «46-47 Company Street , Christ i cinsted, St^
Croix Virgin Iblands. I was employed m the stated
capacity until Decembei 1970. During thi.s employ
employment I did much lega] research and analysi.^,
drafted pleadings, and prepared legal memoranaa and
trial brif-fs. J also did investigative reporting
on casefi and otherwise generally assisted the
lawyers m t he i t tri.il preparations. o
In December of 197 1 I became a partner in the firm
of Hodge, Sheen S- Finch located at #46-47 Company
Street, Chri st i ansl ed, St. Croix, Virgin Islands
1 remained a part ner of the aforementioned law firm
until February 19 76.
In February 1976 I was appointed to the Municipal
Court ben<:h in the Viruin Islands. From February
1976 to the present, I have heard an excess of
20,000 cases-
2 Describe your typical former clients, and
'mention the areas, if any, in which you have
specialized.
My typical former civil clients were generally
middle income Virgin Islanders who needed legal
advice with reference to business contracts,
especially contracts related to the sale or
purchase of real estate. My biggest corporate
client was First Federal Savings & Loan
Association of Puerto Rico.
1 Did you appear in court frequently,
' occasionally, or not at all? If the frequency
of your appearances in court varied, describe
each such variance, giving dates.
I appeared in court regularly.
2. What percentage of these appearances was in:
(a) federal court;
(b) state courts of record;
(c) other courts.
616
Page 10
Approximately fifty percent (50%) of my court
appearances were in the United States District
Court of the Virgin Islands. Approximately
fifty percent (50%) of my court appearances
were in the Municipal Court of the Virgin
Islands. I did not appear before any other
courts .
3. What percentage of your litigation was:
(a) civil;
(b) criminal.
Approximately eighty-five percent (85%) of my
litigation was civil. Approximately fifteen
percent (15%) of my litigation was criminal.
4. State the number o£ caseB in coiirtB of record
you tried to verdict or judgment (rather
theui settled) , indicating whether you were
sole counsel, chief coiinsel, or associate
counsel.
During the years I was in practice, approxi-
mately 200 of my cases were tried to verdict
or judgment. In all these cases I was chief
counsel .
5. What percentage o£ these trials was:
(a) jury;
(b) non-jury.
Ten percent (10%) of these trial were jury
trials in the District Court of the Virgin
Islands. The remaining ninety percent (90V)
were non-jury.
18. Litigation: Describe the ten most significant litigated
matters which you personally handled. Give the citations,
if the cases were reported, and the docket number and date
if \inreported. Give a capsule stimmary of the substance of
each case. Identify the party or parties %^om you
represented; describe in detail the nature of your
participation in the litigation and the final disposition
of the case. Also state as to each case;
(a) the date of representation;
(b) the name of the court and the name of the judge or
\
617
Page 3 1
judges before whom the case was litigated; and
(c) the individual naune, addresses, and telephone
numbers of co-counsel and of principal counsel for
each of the other parties.
Robert Gustafson_. ... v_^ Fort _._ Louise Augusta
Condominiums, .....In.c_^. . and The. Government o£ the
Virgin Isl ands^
In this civil action for dam.agcs, the pJaintiff
a minor, recovered $12S,000 for injury to the ieft
lacrimal duct as a result r^f an aulomobiLe accidf^nt .
Sensitive bone restoi at i on was performed by a
specialist in New York. This case is of signifi-
cance because it was tried thirty days after the
Federal Rules of Evidence became effect ive in the
Virgin Islands and 1 waK able to use the Rule
703 so as to allow an expert resident in the
Virgin Islands to testify using the medical
records of the doctor in New York.
I represented the plaintiff and did all of the
pre-trial and trial work. The trial occurred
in NovenJDer of 1975 in the United States District
Court of the Virgin Islands before the Honorable
Warren H. Young. Counsel for the other party was
Robert Ruskin, now deceased.
Government of the Virgin. ... Islands v^ Jesus
Santiago.
In this criminal prosecution for burglary, I
represented the defendant. The case was tried
before a twelve person jury in the United
States District Court of the Virgin Islands,
Judge Warren H. Young presiding. The jury
returned a verdict of not guilty. This case is
of significance because of the overwhelming
odds of an acquittal. Every member of the firm
except myself declined representation of the
accused. The Government was represented by
Attorney Julio Brady, 1?.32 King Street, Christ-
iansted, St. Croix, Virgin Islands, telephone
number (809) 773-712.1 .
In Re the Discharge of Private Clyde Miller .
This was a charged trial which occurred in the
Republic of Vietnam. The trial was had before
a board of officers presided over by an officer
of the rank of colonel whose name I do not
618
Page 12
recall. Private Miller was about to be dis-
charged because he was caught in a homosexual act .
This case is of significance to me because I was
able to convince the board with credible
evidence, that Miller's sexuality was a result of a
psychological defect . Considering the grave charge
involved, and considering the tense, combat atmos-
phere of the time and place involved. Miller's
discharge was a significant achievement.
First Federal Savings & Loan Association of
Puerto Rico v. Giddel Martinez.
This was a foreclosure action in which I
represented the plaintiff in the United States
District Court of the Virgin Islands, Judge
Warren H. Young presiding. This case was
significant because the defendant challenged
the annual percentage mortgage rate as usurious.
George H. T. Dudley, Sr. defended the case and lost.
Mr. Dudley is now deceased.
United States Army v. Michael Smith.
This was a court martial for AWOL, (3 charges)
and failure to obey a lawful order. The matter
was tried before a board of officers presided
over by an officer of colonel rank, whose name
I do not recall. I defended Private Smith who
was convicted. However, I raised a defense in that
case that is now law. The only identification the
military had against Private Smith was his name,
rank and serial number which he was forced to give
upon return to camp after an absence of 3 months.
His unit had been eliminated in an attack and no
one could identify him. I argued that the Miranda
warnings should have been given to Smith even prior
to questions as to his identity.
Government of the Virgin Islands v. Rov Seales.
In this criminal prosecution for unlawful entry
and larceny tried in the Municipal Court of the
Virgin Islands before the Honorable Antoine L.
Joseph, the defendant was convicted. The signi-
ficance of the case is that it presented
in the Municipal Court for the first time, the
question as to the admissibility of statements
of co-defendants against each other. The
prosecutor was William Brown who is now practic-
ing law in the United States .
Lourdes Cintron v. Clemente Cintron. Sr.
619
Page 13
This was an action for divorce filed in t.he United
States District Court of the Virgin Islands, Judge
Warren H. Young presiding. I represented the
plaintiff in thjs case. It was significant because
of the extensive personal properties which became
involved in the litigation and the question of child
custody. The defendant was represented by Mr.
Francisco Cornciro, former Attorney General of the
Virgin Islands, now deceased.
Anna Peering v. The Coca. Cola, .Bott 1_L no... Co ,._of
the Virgin Islands .
This was a personal injury action filed in the
United States District Court of the Virgin Islands,
Judge Warren H. Young presiding. I represented
Ana Deering, the plaintiff. It was a tr.va] before
a jury which, in my opinion, was significant in
view of the jury award of $25,000 to the plaintiff,
notwithstanding very minimal damages. In this case,
the plaintiff, the operator of a restaurant,
happened to be in the vicinity of a Coca Cola bottle
which exploded and cause a small one inch cut on
the forehead.
Opposing counsel: Robert Ellison, P.O. Box
253, Frederiksted, St. Croix, Virgin Islands 00840.
Telephone No. (809) 772-4700.
MnnsPT-rate Vele? Oonzalez v. Isabel Velez
Gonzalez . •,..„•.- j
This was an action for divorce filed m the Unitea
States District Court of the Virgin Is.Tands, Judge
Warren H. Young presiding. This action .is important
because of the vast amount of real property involved
and the fact that my client, the plaintiff, did not
suffer the loss of his assets. Attorney for the
defendant was John D. Merwin, now living in New
Hampshire, and on St. Croix. Mr. Merwin's address
is P.O. Box 297, Franconia, New Hampshire 03580.
Telephone No. (603) 823-5217.
Christian Hendricks v. ^Gulf. .Mortgage
Corporation. v. ,-. i «:
This is an action in foreclosure against the Gult
Mortgage Corporation filed in the United States
District Court of the Virgin Islands, Judge Warren
H Young presiding. This foreclosure is important
because of the extensive title search involved and
substantial questions of priorities of mortgages
that arose. The defendant was represented by Warner
Alexander of Christiansted. St. Croix, Virgin
620
Page 14
Islands, whose phone number is (809) 773-3930.
The records in all the above-mentioned cases in
which I appeared as counsel were destroyed by
Hurricane Hugo, and thus any additional information
is difficult to obtain.
The following is a list of attorneys who have
appeared before me since 1990:
Winston A. Hodge, Esquire
Hodge & Sheen, P.C.
Sunny Isle Professional Bldg.
Suite 5-6
St. Croix, Virgin Islands 00823
Tel: (809) 773-7725
Joel H. Holt, Esquire
2132 Company Street
Suite 2
Christiansted, St. Croix
Virgin Islands 00820
Tel: (809) 773-8709
Martial A. Webster, Esquire
Law Offices of Wynter & Webster
P.O. Box 1847
Frederiksted, St. Croix . -
Virgin Islands 00841
Tel: (809) 772-1900
Douglas L. Capdeville, Esquire
P.O. Box 4191
Christiansted, St. Croix
Virgin Islands 00822
Tel: (809) 773-7275
Britain H. Bryant, Esquire
Bryant, White & Associates, P.C.
47 King Street, 2nd Floor
Christiansted, St. Croix
Virgin Islands 00822
Tel: (809) 773-2785
Gertrude LeCointe, Esquire
298 Estate Peter's Rest
St. Croix, Virgin Islands 00820
Tel: (809) 773-7577
621
Page 15^
Jacqueline Warner Mills, Esquire
81 Castle Coakley
St. Croix, Virgin Islands 00820
Tel: (809) 778-4621
O. S. Lad Mingus, Esquire
Law Offices of R. Eric Moore
2108 Company Street, 2nd Floor
Christiansted, St. Croix
Virgin Islands 00822
Tel: (809) 773-4150
Todd Newman, Esquire
Nichols, Newman & Silverlight
1131 King Street, Suite 204
Christiansted, St. Croix
Virgin Islands 00820-4970
Tel: (809) 773 3200
Kevin A. Rames, Esquire y
2111 Company Street \
Suite 3 I
Christiansted, St. Croix
Virgin Islands 00820 ^.
Tel: (809) 773-7284 fl^, ''
19. Legal Activities: Describe ♦•he most signi f iccnt legal
activities you have pursued, including significant litigation
which did not progress to trial or legal matters that did not
involve litigation. Describe the nature of your participa-
tion in this question, please omit any information protected
by the attorney- client privilege (unless the privilege has
been waived . )
My career on the bench is my most significant legal
activity and has been so for the past eighteen
years .
Member, Judicial Ethics Committee of the American
Judges Association, 1979 ~ present.
The Committee has given attention to the formation
of new commissions investigating judges and has
studied cases involving allegations of past judicial
misconduct. As a member of the stated committee I
have read much material on the various judicial
ethics committees, judicial accountability
commissions and judicial nominating commissions. It
is my opinion that the matter of ethics in judging
622
Page 16
IS of crucial importance to the judiciary. Judqes
must continue to exhibit impartiality in word and
deed so as to foster confidence in the judicial
system. A judge must be perceived to be
unfailingly fair.
623
II. FINANCIAL DATA AND
CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all euiticipated
receipts from deferred income arrangements, stock,
options, iincompleted contracts and other future benefits
which you expect to derive from previous business
relationships, professional services, firm memberships,
former employers, clients, or customers. Please describe
the arrangements you have made to be compensated in the
future for any financial or business interest.
Retirement benefits equal to 66-2/3% of the current
salary of judges of the Territorial Court as
retirement benefits.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the
categories of litigation and financial arrangements that
are likely to present potential conflicts-of -interest
during your initial service in the position to which you
have been nominated.
I do not anticipate any potential conflict of
interest. However, if any conflict of interest
arise, I shall apply the Code of Judicial Conduct
insofar as it relates to recusal of judges.
Do you have any plsuiB, coannitments, or agreements to
pursue outside employment, with or without compensation,
during your service with the court? If so, explain.
None.
List sources and amounts of all income received during
the calendar year preceding your nomination and for the
current calendar year, including all salaries, fees,
dividends, interest, gifts, rents, royalties, patents,
honoraria, juid other items exceeding $500 or more (If you
prefer to do so, copies of the financial disclosure
report, required by the Ethics in Grovemment Act of 1978,
may be substituted here.)
See Financial Disclosure Report.
624
Page 2
Please complete the attached fineuicial net worth
statement in detail (Add schedules as called for.)
See attachment .
Have you ever had a position or played a role in a
political campaign? If so, please identify the
particulars of the campaign, including the candidate,
dates of the campaign, your title and responsibilities.
No.
625
SCHEDULE A
Bank of Nova Scotia
Sunny Isle Branch
Account # 11939 $500.00
Prudential Bache $34,000.00
Christiansted, St. Croix
Account # 05Q. 128550-55
$34,500.00
626
CONFIDENTIAL FINANCIAL STATEMENT
NET WORTH
Provide a complete current financial net worth statement which itemizes in detail all assets (including bank
accounts real estate securities, trusts, investments, and other financial holdings) all liabilities (including debts,
mortgages, loans, and other financial obligations) of yourself, your spouse, and other immediate members of
your household.
ASSETS
UABIUTIES
Cish on tund and in banks
ISee Sch
.A
Notes payable to banks — secured
0
1
U.S. Government securities — idd
0
Notes payable to banks— unsecured
Notes payable to relatives
|l 0
i 0
1
Listed jeeurities — add schedule
Unlisted securities — add schedule
Armunts and notes receivable;
Due from relatives and foends
Due from ottiera
Doubtful
Real estate owned — add schedule
0
—
Notes payable to others
Aoasoirts and bills due
Unpaid income tax
Other unpaid Ux and interest
Real estate mortgages payable — add
schedule
Chattet moftS'K** '"d ot*'*'' •'«"*
payibia
Other debts — itemiie:
0
1
0
i °
0
0
0
1
0
69,
)00
0
00
See bel
0
3W
0
0
1
Autos and other pergonal property
0
Cash value — life insurance
0
....
1
Other assets — rtemiie;
0
1
1
1
000
Total nabifities
Net worth
Total liabilities and net worth
69,
-
.00
3b7.
500
.no
Total assets
4'^f;.
snn
.nn
4o6,
500
00
COffnNGENT UABILfTIES
GENERAL INFORMATION
As endorser, oxnaher or guarantor
0
Are any assets pl«dge«f? (Add sched-
ule.)
Are you defendant in any suits or
l^ai actions'
Have you ever taken bankruptcy?
NO
0
NO
Legal CUims
Provision for Federal Income Tax
0
0
— 1
1
' NO
Other special debt
0
«
1
Schedule of property owned
4B Estate Solitude,
St. Croix, Virgin Islands
28 LaGrange, Frederiksted,
St. Croix, Virgin Islands
78A Estate Two Brothers
Frederiksted, St. Croix
Virgin Islands
$350,000.00
45,000.00
7,000.00
627
AFFIDAVIT
I, RAYMOND L. FINCH, do swear that the information
provided in this statement is, to the best of my knowledge,
true and accurate.
628
III. GENERAL (PUBLIC)
1. An ethical conBlderation under Canon 2 of the American
Bar Association's Code of Professional Responsibility
calls for "every lawyer, regardless of professional
prominence or professional workload, to find some time to
participate in serving the disadvantaged." Describe what
you have done to fulfill these responsibilities, listing
specific instances and the aunoiint of time devoted to
each.
Member, Donald Walker's Scholarship Foundation -
three days per month. This foundation funds and
operates the Boys' Club of St. Croix and awards
scholarships to needy graduates of the public
schools .
Served on Board of Directors, Boys Club of St.
Croix, Virgin Islands.
Served on Board of Directors, Boys Scout Council of
the Virgin Islands - one day each month. This
organization approved operating guidelines for the
Boy Scouts Troop in the Virgin Islands.
Served on church council. Lord God of Sabbaoth
Lutheran Church. This organization operates the
Lutheran Church on St. Croix.
Served as a member of the Virgin Islands Lav. En-
forcement Planning Commission. This organization
approved guideline funding of law enforcement
agencies of the Virgin Islands.
2. The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a
judge to hold membership in any organization that
invidiously discriminates on the basis of race, sex, or
religion. Do you currently belong, or have you belonged,
to euiy orgsuiization which discriminates -- through either
formal membership requirements or the practical
implementation of membership policies? If so, list, with
dates of membership.
No.
3, Is there a selection conmiission in your jurisdiction to
recommend candidates for nomination to the federal
courts? If so, did it recommend your nomination? Please
describe your experience in the entire judicial selection
629
Page 2
process, from beginning to end (including the
circumstances which led to your nomination and interviews
in which you participated) .
Although there is no judicial selection commission
in this jurisdiction, I was recommended to the
Justice Department. I was interviewed by Virgin
Islands Delegate to Congress Ron deLugo and some
members of the Democratic Party of the Virgin
Islands. I was also interviewed personally by the
Governor of the Virgin Islands, the Honorable
Alexander A. Farrelly. Following these local
interviews, several persons at the United States
Department of Justice conducted interviews and
thereafter, I was not.ified that I would be
subjected to an FBI and ABA investigation. On
March 23, 1994, I was notified I was being
nominated.
Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case,
legal issue or question in a manner that could reasonably
be interpreted as asking how you would rule on such case,
issue, or question? If bo, please explain fully.
No.
Please discuss your views on the following criticism
involving "judicial activism."
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
siibject of increasing controversy in recent years. It
has become the target of both popular and academic
criticism that alleges that the judicial branch has
usurped many of the prerogatives of other brsuiches and
levels of government.
Some of the characteristics of this "judicial activism"
have been said to include:
a. A tendency by the judiciary toward problem- solution
rather than grievance -resolution;
b. A tendency by the judiciary to eii5)loy the
individual plaintiff as a vehicle for the
imposition of far-reaching orders extending to
broad classes of individuals;
630
Page 3
c. A tendency by the judiciary to impose broad,
affirmative duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as steuiding euid
ripeness; and
e. A tendency by the judiciary to impose itself upon
other institutions in the manner of cin
administrator with continuing oversight
responsibilities .
In rendering decisions, I have always felt
constrained by the rule of law, precedent, and
the United States Constitution. I have not
used the authority of the court to impose
administrative oversight on the other branches
of government. The legislative branch of the
government makes the law and the judicial
branch interprets it.
In arriving at conclusions of law, and in
making judgments and otherwise rendering
decisions, courts must follow the appropriate
jurisdictional requirements. Courts should
always require that litigants have standing to
bring suit and further, that cases before the
court are ripe for decision.
631
UNITED STATES SENATE
Committee on Judiciary
Questionnaire for Judicial Nominees
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
Solomon Oliver, Jr.
2. Address: List current place of residence and office
address (es) .
Residence :
1644 Crest Road
Cleveland Heights, Ohio 44121
Office:
Cleveland State University
Cleveland-Marshall College of Law
1801 Euclid Avenue
Cleveland, Ohio 44115 ' —
3. Date and place of birth.
July 20, 1947; Bessemer, Alabama.
4. Marital Status (include maiden name of wife, or husband's
name;. List spouses's occupation, employer's name and
business address (es).
Louisa Stroop Oliver (maiden name is Stroop) . Cleveland
Heights Board of Education. Career Education Specialist.
14780 Superior Road, Cleveland Heights, Ohio 44118.
5. Education: List each college and law school you have
attended, including dates of attendance, degrees received,
and dates degrees were granted.
Miles College, 1965-66, transferred.
Harvard University, Summer 1966, transient.
College of Wooster, 1966-69, B.A. June 1969.
New Yor)c University School of Law, 1969-72, J.D. June 1972.
Columbia University, Graduate School, Summer 1972,
transient.
Case Western Reserve University, Graduate School, 1973-78,
M.A. June 1974.
6. Employment Record: List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were
632
connected as an officer, director, partner, proprietor, or
employee since graduation from college.
1991-present Associate Dean of Faculty and Administration.
1982-present Professor of Law, Associate Professor of Law.
Cleveland-Marshall College of Law of
Cleveland State University.
1976-1982 Assistant U.S. Attorney.
1978-1982 Chief, Civil Division.
1982 Chief, Appellate Litigation.
U.S. Attorney's Office, Cleveland.
1979-1982 Lecturer, Trial Advocacy, Case Western
Reserve University School of Law (part-time).
1975-1976 Senior Law Clerk, Judge William H. Hastie,
U.S. Third Circuit Court of Appeals
(deceased) .
Summer 1975 Interim Summer Associate, Jones, Day, Reavis
& Pogue, Cleveland, Ohio.
1972-1975 Assistant Professor of Political Science,
College of Wooster, Wooster, Ohio.
Military Service: Have you had any military service? If
so, give particulars, including the dates, branch of
service, ran)c or rate, serial number and type of discharge
received.
No.
Honors and Awards : List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
Summer 1987, National Endowment for the Humanities
Fellowship; among twelve law professors chosen nationwide to
serve as Visiting Scholar at Stanford University College of
Law to participate in Seminar entitled "Political Experience
and Thought in the Making of the Constitution."
Other Awards:
Outstanding Faculty Award, Black Faculty and Staff
Organization, Cleveland State University, 1993.
Department of Justice Special Achievement Award, 1982.
Commendation, Assistant Attorney General Land and Natural
Resources, 1980.
Commendation, Director of the F.B.I. , 1978.
Bar Associations : List all bar associations, legal or
2
633
judicial -related committees or conferences of which you are
or have been a member and give the titles and dates of any
offices which you have held in such groups.
1973 -75, Wayne County Bar Association, Legal Aid Services
and Referral Committee.
1973 -present, Ohio State Bar Association, Federal Courts
Committee 1992 -present .
1980-present , Norman S. Minor Bar Association, Chairman,
Judicial Selection Committee 1980-82.
1986 -present , Cleveland Bar Association, Ethics Committee
1986 -present and Long Range Planning Committee 1989; Chair,
CLE Program Committee on Ethics, 1989, which sponsored the
first programs by Cleveland Bar for lawyers on this subject
after state mandatory CLE requirements became effective.
1989 -present , American Bar Association, Section on Legal
Education and Admission to Bar (1993 -present , Student
Services Committee) and Litigation Section.
1991-present , Civil Justice Reform Act Advisory Group,
Northern District of Ohio.
10. Other Memberships: List all organizations to which you
belong that are active in lobbying before public bodies.
Please list all other organizations to which you belong
Those organizations to which I belong that are active in
lobbying before public bodies are the NAACP and the Southern
Poverty Law Center.
The other organizations to which I belong are the Cleveland
Museum of Art, the Cleveland Museum of Natural History, WVIZ
Public Television, WCPN Public Radio, FHC Housing Corp. I
was President of the College of Wooster Alumni Association
from 1986-1988 and am currently a Trustee of the Wooster
Board of Trustees, a position I have held since 1991.
11. Court Admission: List all courts in which you have been
admitted to practice, with dates of admission and lapses if
any such memberships lapsed. Please explain the reason for
any lapse of membership. Give the same information for
administrative bodies which require special admission to
practice.
Ohio Bar Association, May 5, 1973.
United States District Court for the Northern District of
Ohio, October 10, 1977.
United States Sixth Circuit Court of Appeals, April 20,
634
1977.
United States Supreme Court, August 8, 1980.
12. Published Writings: List the titles, publishers, and dates
of books, articles, reports, or other published material you
have written or edited. Please supply one copy of all
published material not readily available to the Committee.
Also, please supply a copy of all speeches by you on issues
involving constitutional law or legal policy. If there were
press reports about the speech, and they are readily
available to you, please supply them.
Articles
(1) "A Survey of Post-Croson Developments," 38 LOYOLA L.
REV. 7 (1992) .
(2) "Litigating the Constitutionality of State and Local
Affirmative Action Plans: Issues and Approaches," 10
REV. LITIG. 55 (1990) .
(3) "Municipal Liability For Police Misconduct Under 42
U.S.C. §1983 After City Of Oklahoma City v. Tuttle," 64
WASH. U.L.Q. 151 (1986) .
(4) "Appellate Fact Review Under Rule 52(a): An Analysis
and Critique of Sixth Circuit Precedent," 16 U. TOL. L.
REV. 667 (1985)
Speeches
I have given two speeches involving constitutional law or legal
policy:
(1) "Affirmative Action to Vindicate Civil Rights After
City of Richmond v. Croson, " University of Wisconsin,
February 25, 1989. (Earlier draft of what became my
article listed above published at 10 REV. LITIG. 55
(1990) . )
(2) "Post-Croson Developments," Minority Law Teachers
Conference, New Orleans, Louisiana, September 29, 1992.
(Earlier draft of what became my article listed above
published at 38 LOYOLA L.REV. 7 (1992).)
13. Health: What is the present state of your health? List the
date of your last physical examination.
Very good. October 15, 1993.
14. Judicial Office: State (chronologically) any judicial
offices you have held, whether such position was elected or
635
appointed, and a description of the jurisdiction of each
such court.
None .
15. Citations : If you or have been a judge, provide: (1)
citations for the ten most significant opinions you have
written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or
where your judgment was affirmed with significant criticism
of your substantive or procedural rulings; and (3) citations
for significant opinions on federal or state constitutional
issues, together with the citation to appellate court
rulings on such opinions. If any of the opinions listed
were not officially reported, please provide copies of the
opinions .
N/A.
16. Public Office: State (chronologically) any public offices
you have held, other than judicial offices, including the
terms of service and whether such positions were elected or
appointed. State (chronologically) any unsuccessful
candidacies for elective public office.
17. Leaal Career:
a. Describe chronologically your law practice and
experience after graduation from law school including:
1. whether you served as clerk to a judge, and if so,
the name of the judge, the court, and dates of the
period you were a clerk;
Senior Law Clerk, Judge William H. Hastie, United
States Third Circuit Court of Appeals,
Philadephia, Pennsylvania, 1975-76.
2. whether you practiced alone, and if so, the
addresses and dates;
1973-75. I did an extremely small amount of
practice while I was employed full-time as an
Assistant Professor of Political Science by the
College of Wooster; my address was 449 College
Avenue, Wooster, Ohio 44 691.
1982 -present . I have consulted with other
attorneys and represented selected clients from
1982 -present on a part-time basis. My address is
1644 Crest Road, Cleveland Heights, Ohio 44691.
636
the dates, names and addresses of law firms or
offices, companies or governmental agencies with
which you have been connected, and the nature of
your connection with each;
From 1972 to 1976. I was an Assistant Professor
of Political Science at the College of Wooster,
Wooster, Ohio 44691. I had a leave of absence
during 1975-1976.
During the summer of 1975 only. I worked for
Jones, Day, Reavis and Pogue, 901 Lakeside Avenue,
Cleveland, Ohio 44113, as a interim summer
associate .
From 1976 to 1982. All of my practice was on
behalf of the United States as an Assistant United
States Attorney for the Northern District of Ohio,
600 Superior Avenue East, Cleveland, Ohio 44114.
I became the Chief of Civil Litigation of that
office in 1978 and continued in that capacity
until 1982. In 1982, I becaime the Founding Chief
of Appellate Litigation in that office.
From 1982 to present. I have been a faculty
member at Cleveland-Marshall College of Law where
I am a tenured professor; from 1991 to present, I
have also been Associate Dean for Faculty and
Administration at the College of Law.
What has been the general character of your law
practice, dividing it into periods with dates if
its character has changed over the years?
1972-75. As an Assistant Professor of Political
Science at the College of Wooster, my primary
teaching areas were Constitutional Law, Civil
Liberties and American Politics.
Summer 1975. As summer Associate at Jones, Day, I
had a variety of research assignments in civil
cases .
1975-76. As a law clerk, I drafted bench
memoranda and opinions on a wide range of civil
and criminal issues raised by the cases heard by
the federal appellate judge for whom I clerked.
1976-82. The U.S. Attorney's Office represented
the United States in almost all the litigation in
which it was engaged in this district. I
frequently appeared in the District Court during
637
this time frame. I had supervisory responsibility
over all the civil cases in our office,
approximately 3600. My career in the U.S.
Attorney's Office involved handling a wide range
of civil cases. Early in my career, I had
responsibility for some criminal matters as well.
The following is a list of some of the types of
litigation in which our office was engaged: tort
litigation against the United States (including
swine flu litigation) , Bivens (constitutional
tort) litigation against governmental officials,
environmental litigation under the Clean Air and
Clean Water Acts and other environmental statutes,
FOIA and Privacy Act cases, cases under the Food,
Drug and Cosmetic Act against adulterated and
misbranded products, suits under the Consumer
Product Safety Act and the Federal Trade
Commission Act, condemnation and foreclosure
actions, social security disability suits,
employment discrimination cases, ban)cruptcy
matters, cases under the Food Stamp Act and cases
involving student loan defaults.
1982 -present . I have been employed at Cleveland-
Marshall College of Law of Cleveland State
University College of Law as a faculty member
teaching litigation related courses -- federal
jurisdiction, trial advocacy and civil procedure.
I am currently a full Professor of Law with
tenure; from 1991 to present, I have served as
Associate Dean of Faculty and Administration; from
1987-89, I served on the Cleveland State
University Board of Trustees as one of two elected
representatives of the entire university faculty;
within the law school and the university I have
served as the College of Law's representative to
the Faculty Council (now Senate) , as a member of
the Presidential Search Committee of the
University and on the University President's
Advisory Committee on Human Relations and Campus
Unity. As Associate Dean, I have a wide range of
responsibilities, including to act in the place of
the Dean in his absence. Other responsibilities
include exercising supervisory responsibility over
the Financial Aid and Career Services offices and
Support Services. I also plan and preside over a .
faculty seminar series, have responsibility for
approving grades submitted by faculty, provide
input to the Dean on faculty committee assignments
and faculty performance, facilitate faculty
resource support and serve on a number of
committees, including Curriculum, Budget and Honor
638
Code Committees.
1982-85. I was retained by the U.S. Attorney to
complete litigation of some complex environmental
cases and appeals.
1985 -present . As a professor at Cleveland-
Marshall College of Law, I have taught federal
jurisdiction, civil procedure and trial advocacy
and written articles in the first two areas.
Since 1985 I have consulted with attorneys on a
wide range of federal procedural and
jurisdictional issues and litigated a number of
civil cases including tort, contract, and 42
U.S.C. 1983 cases. For example, the City of
Cleveland has retained me on four occasions in
Section 1983 matters.
2. Describe your typical former clients, and mention
the areas, if any, in which you have specialized.
2. From 1973-1975. I represented only a few
individuals, primarily by drafting wills or in
regard to matters involving contracts.
From 1976-1982. As an Assistant U.S. Attorney,
the United States was my only client.
1982-present . I represented the United States as
a Special Assistant U.S. Attorney from 1982-1985,
mainly in environmental cases. I have been
retained by a municipal government in civil rights
lawsuits under Section 1983 of the Civil Rights
Act. I have also been consulted by attorneys on a
wide range of civil procedural and jurisdictional
issues and have served as counsel for individuals
in several cases in federal court, involving
contract, tort and other issues.
1. Did you appear in court frequently, occasionally,
or not at all? If the frequency of your
appearances in court varies, describe each such
variance, giving dates.
When I was employed in the U.S. Attorney's Office
I appeared regularly in court. Thereafter, I have
appeared there occasionally.
2. What percentage of these appearances was in:
(a) federal courts;
639
90%
(b) state courts of record;
10%
(c) other courts.
0%
3. What percentage of your litigation was:
(a) civil;
97%
(b) criminal.
3% or less was criminal.
4. State the number of cases in courts of record you
tried to verdict or judgment (rather than
settled) , indicating whether you were sole
counsel, chief counsel, or associate counsel.
I tried approximately twelve cases to verdict. I
was sole counsel in nine and chief counsel in the
other three. This does not include hearings in
foreclosure proceedings, social security
disability cases or bankruptcy proceedings, for
example .
5. What percentage of these trials was:
(a) jury;
(b) nonjury.
To the best of my recollection, all these
cases were tried to the court. Most civil
cases against the United States, especially
those that are likely to lead to litigation
such as those under the Federal Tort Claims
Act, are required by statute, to be tried to
a court without a jury.
18. Litigation: Describe the ten most significant litigated
matters which you personally handled. Give the citations,
if the cases were reported, and the docket number and ate if
unreported. Give a capsule summary of the substance of each
case. Identify the party or parties whom you represented;
describe in detail the nature of your participation in the
640
litigation and the final disposition of the case. Also
state as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or
judges before whom the case was litigated; and
(c) The individual name, addresses, and telephone numbers
of CO- counsel and of principal counsel for each of the
other parties.
i. Palmarini v. United States of America, Defendant C76-
369 A (N.D. Ohio 1977) . Judge Contie.
I represented the United States in this personal injury
action under Federal Tort Claims Act for injuries
allegedly suffered as the result of negligent design,
construction and maintenance of the sidewalk of a
postal facility. The court denied recovery to
Plaintiff on basis of his own contributory negligence.
Opposing counsel was George Vasko, Suite 1706, 76 S.
Main Street, Akron, Ohio 44308, 216-376-3607.
ii. Furlan v. U.S., Defendant, C78-67 (N.D. Ohio). Judge
Manos .
I represented the United States in this action seeking
to hold the U.S. liable for the actions of two F.B.I,
agents who allegedly violated the Fourth Amendment
rights of a homeowner during the execution of an arrest
warrant for a third party. The plaintiff claimed
psychological and other injuries. The court found in
favor of the government.
Opposing counsel was Walter S. Haffner, 4972 Oakland
Drive, Cleveland, Ohio 44124, 216-621-3800.
iii. Kittle v. U.S., C77-188A {N.D. Ohio 1978). Judge
Contie .
I represented the United States. This was a suit under
the Federal Tort Claims Act. Trial was on issue of
damages only. U.S. admitted liability for serious
injuries to plaintiff in head-on car crash caused by
member of Ohio National Guard who was on duty. Our
object was to be fair to plaintiff but to keep deimages
within appropriate range. We accomplished our goal.
Verdict was for approximately one hundred twenty five
thousand dollars ($125,000).
10
641
Opposing counsel was Howard L. Calhoun, 707 Society
Building, Akron, Ohio 44308, 216-253-1111.
In re: Milton Phillip Shulman, C79-111 7A (N.D. Ohio).
Judge Contie.
I represented the court for the Northern District of
Ohio. This was a hearing to determine whether or not
lawyer should be barred from practicing in District
Court as a result of continuous obstreperous conduct
during trial of housing discrimination case under 42
U.S.C. 1981 case before Judge in District. The
disbarment proceeding was initially commenced by a show
cause order of the District Judge who presided in the
housing discrimination case. It was issued while the
jury was still out in the case and allowed the
defendant attorney very little response time. The
Court barred him from the role of attorneys for a
period of two years on the grounds of both willful
obstreperous conduct and incompetence. As a condition
of readmission, he was required to demonstrate that he
had a proficiency and understanding in the Federal
Rules of Civil Procedure and Evidence, and the Local
Rules. He was also required to show understanding of
and a commitment to the Code of Professional
Responsibility, to take courses in Evidence, Procedure,
Criminal Law, Trial Advocacy, and Professional
Responsibility at an accredited law school as well as
sit second chair in a number of cases in the District
Court. I first entered the cases at the appeal stage
when the court requested representation by the U.S.
Attorney. The 6th Circuit reversed the suspension
partly on the ground that the Defendant was not given
enough time to prepare to defend and that personal
feelings between the judge and lawyer during the
proceeding indicated that the matter should be heard
before another judge. I tried the case in the second
proceeding before another judge. The Court placed
restrictions on the attorney's ability to remain a
member of the bar by requiring him to demonstrate
competence in procedure, evidence and professional
responsibility and to have co-counsel in cases before
the Court. This order was upheld in substantial part
by the 6th Circuit on appeal, a case I did not argue.
Opposing counsel was Jack Schulman (son of the
Defendant) , 1700 Standard Building, Cleveland, Ohio
44113, 216-621-0580.
U.S., Plaintiff -Appellee, v. John Doe, Defendant-
Appellant, 556 F.2d 391 (6th Cir. 1977). Judges
Celebrezze, Lively and Rubin.
11
642
I represented the United States and argued the appeal .
Defendant -Appellant pled guilty to a charge of
embezzlement from a bank whose deposits were insured by
the FDIC. Defendant -Appellant, being a youth offender,
was sentenced to two years probation under the Federal
Youth Corrective Act, 18 U.S.C. §505, et seq. The
primary issues were (1) whether a person who had been
sentenced under the Youth Corrections Act, 18 U.S.C.
5021(b), and whose conviction had been set aside in the
discretion of the court under that Act, was
automatically entitled to have his record expunged and
(2) whether or not the judge's refusal to expunge was
an abuse of his discretion to expunge pursuant to the
inherent equitable power of the court. The Court of
Appeals affirmed the judgment of the District Court
denying expungement .
Opposing counsel was Stephen T. Parisi, Esq., McDonald
Hopkins Burke & Haber, 600 Superior Avenue, Suite 2100
Cleveland, Ohio 44114, 216-348-5740.
vi. U.S., Plaintiff -Appellee v. Samuel Damiano, Jr.,
Defendant -Appellant, 579 F.2d 1001 (6th Cir. 1978).
Judges Engel, Keith and Merritt.
I represented the United States and argued the appeal.
The issue was whether or not the court should affirm
the contempt conviction of a defendant who pled guilty
to passing and uttering counterfeit obligations for
refusal to testify at the trial of an acquaintance
charged with similar crimes on the ground it would
violate his 5th Amendment Privilege against self-
incrimination in that such testimony might subject him
to further prosecution. The Court of Appeals affirmed
the judgment of conviction finding that the trial ]udge
had taken every precaution to ensure that his rights
would not be violated before holding defendant in
contempt. The trial court held a voir dire hearing and
determined what questions the U.S. Attorney would ask
at trial. He then made a careful ruling stating which
questions were permissable and which questions could
not be asked as violative of his Fifth Amendment
rights .
Opposing counsel was Thomas Longo, 28001 Chagrin Blvd.,
Suite 300 Woodmere Village, Ohio 44122, 216-292-0520.
vii. U.S., Plaintiff -Appellee v. Arthur L. Phillips, 575
F.2d 97 (6th Cir. 1978). Judges Phillips, Edwards and
Cecil .
I represented the United States and argued the appeal.
12
643
The defendant, Arthur Lawrence Phillips, was found
guilty by a jury on both counts of an indictment which
charged him with armed bank robbery and taking a
hostage in violation of 18 U.S.C. 2113 (a), (d) and
(c) . Defendant was sentenced by the judge to a period
of 18 years in prison. Thereafter, defendant filed an
appeal alleging: (l) that the trial court had
improperly allowed statements taken from Defendant by
law enforcement officers in violation of his Miranda
rights to be utilized by the prosecution for
impeachment purposes, (2) that the trial court had
improperly admitted evidence from a government
fingerprint expert who testified in rebuttal that the
failure to recover suspect's fingerprints does mean
that a suspect has not touched the relevant surface,
and (3) that his Sixth Amendment Right to confrontation
was violated when the probation officer of an admitted
participant in the robbery for which defendant was
being tried was allowed to testify as a rebuttal
witness to impeach the robbery participant's testimony
that defendant had not been a participant. The Sixth
Circuit confirmed the conviction.
Opposing counsel was Mike Dane, Assistant Federal
Public Defender, 1660 West 2nd Street, Suite 750,
Cleveland, Ohio 44113, 216-522-4856.
Addison Savmor, Inc., Plaintiff -Appellee v. United
States of America, Defendant -Appellant , 657 F.2d 80
(6th Cir. 1981) . Judges Edwards, Lively and Peck.
I represented the United States and argued the appeal.
The issue was whether or not a District Judge had the
authority to remand a case to the Department of
Agriculture for reconsideration of a three-year
administrative sanction of disqualification for
egregious violations of the Food Stamp Act under
Amendments passed subsequent to the Agency's
determination. The new simendments allowed an option
not previously available, the ability of the Secretary
of Agriculture to impose a civil monetary penalty if he
determined the disqualification of a store found in
violation of the Act would cause hardship to
recipients. The court upheld the position of the U.S.
that the statute could not be applied retroactively and
reversed the District Court. Opposing counsel was
Christopher Nardi, informed by Cleveland Bar
Association he has been suspended from practice, no
longer listed in phone book.
United States, Plaintiff -Appellee v. 169.86 Acres of
Land, 679 F.2d 111 (6th Cir. 1982). Per curiam by
13
644
Judges Lively, Keith, and Merritt.
I represented the United States and argued the appeal.
The issue was whether or not to affirm the District
Court's denial of a county's claim for real estate
taxes from the U.S. on property taken by eminent domain
proceedings. The Court of Appeals affirmed the
District Court's holding, finding that the lien which
the county sought to enforce for taxes attached after
the U.S. became an owner and was prohibited by the
Supremacy Clause of the Constitution as interpreted in
McCulloch V. Maryland (1819) .
Opposing counsel was Willicun E. Schultz, Assistant
Prosecuting Attorney for Akron, Ohio, 53 University
Avenue, Akron, Ohio 44308, 216-643-2800.
X. United States of America, Plaintiff -Appellant v.
Sylvester Tate and William Tate, Appellees-Defendants,
575 F.2d 1152 (6th Cir. 1978) . Per curiam by Weick
Edwards and Lively.
Upholding armed bank robbery and aiding and abetting
armed bank robbery convictions against claims of
insufficiency of the evidence and a defective charge to
jury.
Opposing counsel were Timothy Potts, 600 Standard
Building, Cleveland, Ohio 44113, 216-648-0800, and
Donald Krosin, Assistant Federal Public Defender, 1660
West 2nd Street, Suite 750, Cleveland, Ohio 44113, 216-
522-4856.
19. Legal Activities: Describe the most significant legal
activities you have pursued, including significant
litigation which did not progress to trial or legal matters
that did not involve litigation. Describe the nature of
your participation in this question, please omit any
information protected by the attorney- client privilege
(unless the privilege has been waived.)
i. I have served as counsel in several major environmental
cases concluded by consent decree, including:
a. U.S. v. Republic Steel (now L.T.V. Steel) C 78-
1659 (N.D. Ohio) , environmental litigation seeking
to hold company in contempt for violation of
previous decree in regard to its Warren and
Youngstown facilities. Consent decree requiring
payment of two hundred fifty thousand dollars
($250,000) cash penalty to government and
installation of approximately one million dollars,
14
I
645
in environmental controls. I represented the
United States.
b. U.S. V. Republic Steel (now L.T.V. Steel) C 82-
1680 (N.D. Ohio), environmental litigation under
Clear Air Act for violation at Cleveland blast
furnaces basic oxygen furnace shop; consent decree
requiring payment of one hundred fifty thousand
dollars ($150,000) cash penalty to U.S. and
installation of approximately three to four
million dollars in environmental controls. I
represented the United States.
c. U.S. v. First Federal Credit and Control Corp.. C
79-2274 (N.D. Ohio) , one of first lawsuits
concluded under the Fair Debt Collection Practices
Act; consent decree enjoins debt collector from
engaging in acts prohibited under statute,
requires company to maintain certain records and
submit to FTC monitoring and to pay cash penalty
of thirty five thousand dollars ($35,000). I
represented the United States.
d. U.S. v. Cleveland Electric Illuminating Company, C
81-438 (N.D. Ohio), environmental litigation under
the Clean Air Act; consent decree requiring
payment of one hundred seventy five thousand
dollars ($175,000) cash penalty to U.S. and the
installation of approximately fifty million worth
of environmental controls. I represented the
United States.
e. U.S. V. Copperweld Steel Company (N.D. Ohio), suit
for violation of the Clean Water Pollution Control
Act and its discharge permit issued by the state
of Ohio. The action was concluded by a Consent
Decree which set forth a timetable by which
Copperweld was required to bring its activities
into compliance with the Act and to pay a Fifty
Thousand Dollar ($50,000.00) penalty. I
represented the United States.
f. U.S. V. U.S. Steel, C 79-141 (N.D. Ohio)
settlement agreement with United States Steel in a
lawsuit brought for violation of the Clean Water
Act at U.S. Steel's Lorain facility. The Consent
Decree committed U.S. Steel to the expeditious
completion of a blast furnace recycle system which
would enable the company to comply with the
limitations set by the Clean Water Act and its
discharge permit granted by the State of Ohio,
which limits the amount of various wastes that it
15
646
could discharge into the Black River. In
addition, U.S. Steel, in lieu of paying a penalty
of three million two hundred thousand dollars
($3,200,000) for past violations of the Act,
agreed to other environmental controls that went
well beyond those required by the Act. I
represented the United States.
ii. The following tort case is representative of the
tort cases I have concluded short of trial:
Bethlehem Steel v. U.S., C78-250 (N.D. Ohio), I
represented the U.S. Bethleham Steel sued the U.S.
under the Federal Tort Claims Act, the Suits in
Admiralty Act and the Public Vessels Act seeking
indemnity of nearly three thousand dollars
($300,000) for its contribution to a five hundred
fifteen thousand dollars ($515,000) settlement
with an employee on one of its ships based on the
alleged negligence of a coast guard medical duty
officer and a Public Health Contract facility and
contract doctor. The trial court granted summary
judgment in favor of the United States.
iii. U.S. V. Walter Brudno and Marshall Brudno, Cr. 78-
53 (N.D. Ohio) criminal indictment for selling
adulterated egg products with simulated USDA
labels to local bakeries in violation of the Egg
Product Inspection Act. An agricultural official
indicated that this was the first conviction under
the Act. Walter Brudno and Marshall Brudno were
sentenced to prison for the conduct. I
represented the United States.
iv. I have participated as a member of the American
Bar Association and/or Association of American Law
Schools inspection teams at five law schools over
the past four years.
v. During 1990-91, served as consultant to Cuyahoga
Department of Human Services for purpose of
reviewing its Legal Affairs Department which is
responsible for bringing neglect, abuse and
dependancy cases. I co-authored 63 -page report
for the client analyzing strengths and weaknesses
of Department and setting forth blueprint for
change .
vi. I have been a member of the Ethics Committee of
the Cleveland Bar Association for the last several
years which given opinions to lawyers seeking
advice on whether contemplated action is
consistant with the Ohio Code of Professional
16
vii
viii .
X.
XI
647
Responsibility.
I have been involved as panelist on CLE programs
for lawyers including programs in 1992 and 199J
sponsored by the U.S. Attorney's Office on Ethical
issues for Prosecutors. I am scheduled to be on a
February 24, 1994, CLE program sponsored by the
Cleveland Chapter of the Federal Bar Association
on the recent changes to the Federal Rules of
Civil Procedure.
Mv article "Municipal Liability for Police
Misconduct under §42 U.S.C. 1983 After City of
nv^^hnn.^ V. Tuttle." 64 Washington Umversity Law
Ouarterly 151 (1986) has been nationally
recognized. It has been cited in at least eleven
law reviews, including Illinois, Southern
California, Georgetown, and U.C.L.A. It has been
referred to in four books, including the leading
federal jurisdiction textbook, HART and WECHSLER'S
THE FEDERAL COURTS AND THE FEDERAL SYSTEM (3d ed . ,
1988) .
Since 1991, I have served on The Civil Justice
Reform Act Advisory Group of the Northern District
of Ohio which made the proposal to the court that
is now in effect for this District. One of the
elements of our Plan involves the use of early
neutral evaluation, arbitration and mediation as a
means of getting cases ready for trial, ^^^ucing
cost and delay and resolving disputes. I serve as
a member of a panel of Federal Court mediators
arbitrators and neutrals, appointed by the Judges
of the Northern District of Ohio. I have been
assigned five cases over the last two years m
this capacity.
I served as a Visiting Professor for three weeks
in May 1991 at Comenius University, Faculty ot
Law, in Bratislava, Czechoslovakia, and Charles
University in Prague, Czechoslovakia, lecturing on
the American federal judicial system and meeting
with law faculty and administrators on a range ot
topics including important issues in legal
education. I also met with governmental officials
to discuss the major reforms in their country s
legal and judicial system.
I am currently assisting the Cuyahoga County
Department of Children and Family Services in
interviewing candidates for Director of Legal
Services of that agency.
17
648
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated receipts
from deferred incomes arrangements, stock, options,
uncompleted contracts and other future benefits which you
expect to derive from previous business relationships,
professional services, firm memberships, former employers,
clients, or customers. Please describe the arrangements you
have made to be compensated in the future for any financial
or business interest.
I will be eligible for a pension under the State Teacher's
Retirement System of Ohio based on my contributions to the
system and matching contributions by the University. The
estimate of what that pension would be based on 12 years of
service at age 60 is approximately $23,000.
Explain how you will resolve any potential conflict of
interest, including the procedures you will follow in
determining these areas of concern. Identify the categories
of litigation and financial arrangements that are likely to
present potential conflicts-of - interest during your initial
service in the position to which you have been nominated.
If it involves a conflict as a result of financial holdings,
I would either divest myself of the security or asset, have
it put in a blind trust or get appropriate advice on other
ways to eliminate the conflict or potential conflict. If
the potential conflict is of another type and cannot be
resolved in this manner, I would remove myself from hearing
any case presenting a potential conflict or explore other
appropriate options. In any case, I will follow the
guidelines of the Code of Judicial Conduct for resolving
such issues.
Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during
your service with the court? If so, explain.
No.
List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more. (If you prefer to do
so, copies of the financial disclosure report, required by
the Ethic in Government Act of 1978, may be substituted
here. )
See attached Financial Disclosure Report.
18
649
5. Please complete the attached financial net worth statement
in detail. (Add schedules as called for.)
See attached.
6. Have you ever held a position or played a role in a
political campaign? If so, please identify the particulars
of the campaign, including the candidates, dates of the
campaign, your title and responsibilities.
No.
19
650
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some time to participate in
sei-ving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances
and the amount of time devoted to each.
I have engaged in a fair cunount . Most of it has come in the
form of legal advice rather than litigation. I have drawn
up a number of deeds and wills. Below I cite examples of
recent activity.
I have been advising a pro se litigant over the past three
or four years on a series of lawsuits in the state and
federal courts on matters of civil and appellate procedure
in lawsuits against a municipality for violation of civil
rights, conversion, fraud, etc. I have committed
approximately 2 0 hours to this.
From 1988-90, I advised a pro se litigant on procedural
matters involving federal claims against a County Department
of Human Ser-vices for denial of welfare benefits and
regarding a state court lawsuit against Regional Transit
authority for injuries. I committed approximately 10 hours
to this.
In addition, I have served on the Board of a fair housing
organization. The Cuyahoga Plan, and on the Board of the FHC
housing corporation which backs loans made by banks for home
repairs to persons who have poor credit. As a member of the
Executive Committee of the N.A.A.C.P., I was chair of the
Fair Housing Committee.
I also serve on the Pro Bono Committee at Cleveland-Marshall
College of Law which oversees our program that provides pro
bono opportunities for students with public service agencies
or attorneys doing pro bono cases.
The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a judge
to hold membership in any organization that invidiously
discriminates on the basis of race, sex, or religion. Do
you currently belong, or have you belonged, to any
organization which discriminates -- through either formal
membership requirements or the practical implementation of
membership policies? If so, list, with dates of
memberships. What you have done to try to change these
pol icies?
20
651
I do not belong and have never belonged to any such
organizations .
Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts?
If so, did it recommend your nomination? Please describe
your experience in the entire judicial selection process,
from beginning to end (including the circumstances which led
to your nomination and interviews in which you
participated) .
There is no selection commission in my jurisdiction. I
began the process by sending a letter and resume to Senators
Glenn and Metzenbaum in early December. I had a few people
who were familiar with my qualifications write letters to
them. I completed a biographical information form for the
senators. I was jointly interviewed in Cleveland in early
February by two staff member from each senators office. I
interviewed in Washington in early March with the Senators.
On May 6, I was questioned in detail by a member of Senator
Metzenbaum' s staff on matters related to my background. On
May 7, I was recommended to the president by Glenn and
Metzenbaum. I was then sent several forms to complete by
the White House Counsel's Office which I completed and
returned. Thereafter, I talked with attorneys at the
Department of Justice with responsibility for gathering
additional information bearing on qualifications. On
October 13, 1993, I met with a person from the F.B.I, who
was beginning the process of conducting a background check
on me . I met with members of the Assistant Attorney General
Eleanor Acheson's office on October 20, 1993. I also
submitted a completed questionnaire to the ABA Standing
Committee on the Federal Judiciary around that time. I met
with Mr. John Elam, the Circuit Representative of the ABA
who conducted the background qualifications check on me on
November 17, 1993. Thereafter, I have talked with persons
in Ms. Acheson's office from time to time.
Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
interpreted as asking how you would rule on such case,
issue, or question? If so, please explain fully.
No.
Please discuss your views on the following criticism
involving "judicial activism."
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
subject of increasing controversy in recent years. It has
21
652
become the target of both popular academic criticism that
alleges that the judicial branch has usurped many of the
prerogatives of other branches and levels of government.
Some of the characteristics of this "judicial activism" have
been said to include:
a. A tendency by the judiciary toward problem- solution
rather than grievance- resolution;
b. A tendency by the judiciary to employ the individual
plaintiff as a vehicle for the imposition of far-
reaching orders extending to broad classes of
individuals;
c. A tendency by the judiciary to impose broad,
affirmative duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
e. A tendency by the judiciary to impose itself upon other
institutions in the manner of an administrator with
continuing oversight responsibilities.
Judges must be cognizant of the limited role that
federal courts play in our federal system and vis a vis
the other branches of our national government. They
should recognize that Article III of the U.S.
Constitution and its clarifying doctrines impose upon
them a duty to hear only live, ripe controversies --
not advisory in nature -- presented by parties who have
been injured or are threatened with injury. It is
important that they be committed to the doctrine of
stare decisis and truly understand the critical role
that precedent plays as a check on misuse of judicial
authority. It is especially important to our
democratic scheme of government that the courts adhere
to these tenets, in light of the fact that members of
the judiciary are not popularly elected.
I would add, however, that it would be hard to draw
conclusions about whether a court has been too activist
or overreaching without having the particular
circumstances before me. Clearly in some cases and
circumstances, the nature of the issues and the
complexity of the problems would dictate extensive
judicial orders and some ongoing management by the
court .
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653
FINANCIAL DISCLOSURE REPORT
Kaport R«qulr«d by tb« Ktblca
R«Corv Act of 1989, Pub. L. Ko.
101-194, NovKBDar 30, 19«9
(S U.S.C.A. App. 6, $S101-112)
1. ParBOC Raportlog (Last r&=a, Ilri^, GLlCCIa initial)
Oliver, Solomon Jr.
4. Tltla (Artlcla :i: ^ud^aa indlcata ac^lva or
aanlor ata^ua; ."^glatxata ^udgci Indlcata
full- or p*rz-llra)
U.S. District Judge - active
7. cbaabara or Of flea Addraia
102 U.S. Courthouse
201 Superior Ave.
Cleveland . OH 441 14
2. Cc.Lrt or Organlxatlon
U.S. District Court
Northern District Ohio
Raport Typa (c^aclt approprlata typa)
X Honlnatlor., Data 3^9/94
X Initial Armual Final
3. Data ot ftsport
3/10/94
6. RaportlDg Pariod
1/1/93 -
2/15/94
a. On tna baala oZ tha Infonaatlon co=talnad Id t^la Report, it
iB, Id oy opli:ion. In coapllanca witb appllca^la lawa %nt
rarulatlona
Ravlr-ing Officer Signature ,
IMPORTANT NOTES: The insrrucaons accompanying this form musi be followed Complete all parts,
checking the NONE box for each section where you have no reportable information. Si^ on last page.
POSITIONS. CReponing individual only; see pp. "-S of Insiruciions.)
POSmON NA\TH OF ORGANIZATION /'ENTITY
n
NONE ts= re?cr-t*31e poiltlor.s
■ tpr-:' nr
Alumr.i Trustee
Trustee
Estate of Fannie Patton deceased. Cleveland OH
College of Kooster, Kooster, OH
CuvahoEa Plan, Cleveland, OH
AGREEMENTS. (Reportini u;di\idual only; se« p 8-9 of Insiruciions.)
DATE PARTIES AND TERMS
n
Ref
NONH (No r.port.bl. .gr.uDenu]
■^-'■- r.g Fnp- F'.riiro Oh-o Statp Tearher's Re t i r eirp n t .S v s r en pi^-sion based gP
loyment date:
AiiBiigr 1 Q.'^? twelve .ears of service at age 60 for an estinated S23.000.vr .
if I do not withdraw my contributions.
III. NON-INVESTMENT INCOME. (Reponing individual and spouse; see pp. 9-12 of Insmiaions.)
n
-Jan
DATE
(Honoraria only)
SOURCE AND TYPE
GROSS INCONffi
(yours, not spouse's)
NONn (No r.portAbla non-lnvtitsant IncoB.)
Dec 1993 Cle v . H t s . -Uni v . H t s . Board of Education (S)
Jan - Dec 1993 Cleveland Marshall College of Law (net)
Jan - Dec 1993 se 1 f -enjploy men t income (gross)
Jan - Dec 1992 Cleveland Marshall College of Law (net)
s
$56
421
39
$12
300
00
s"
861
16
Jan - Dec 1992 Se 1 f -employmen t income (gross)
200.00
654
FINANCIAL DISCLOSURE REPORT (cont'd)
tmMm of faraoD Rapomcg
Oliver, Solomon Jr.
D*t» of lUport
3/10/94
IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.
D
(Includes those to spouse and dependeot children: use the parentheticals '(S)' and '(DC)* to indicate reportable
reimbursements and gifts received by spouse and depeodeot children, respective!}. Sec pp.13-15 of Instroctloiis.)
SOURCE DESCRIPTION
NONE (Ho auch raporu^l* ralBburaaa«nta or glffta)
EXEMPT
EXEMPT
V. OTHER GIFTS, (includes those to spouse and dependent children; use the parentheticals "(S)' and "(DC)' to
indicate other gifts received by spouse and dependent children, respectively. Sec pp.15-16 of InstruRions.)
n
SOl'RCE
NONE (No auch rapcru^Ia glfta]
DESCRIPTION
VALl"E
-\'--TT
FV^MPT
VI. LIABILITIES.
(Includes those of spouse and dependent children; Indicate where applicable, person responsible
~-- - ioint liability o"
Instructions.)
for liability bv using the parenthetical '(S)' for separate liabilirv of spouse, '(])' forjoint liabilitv of reporting
individual'and spouse, and '(DC)' for liability of a dependent child, bee pp.i6-18 oiln" ~~' '
H
CREDITOR
NONE (No laportabla IlaOlllclaa)
DESCRIPTION
VALUE CODE*
• vMjn oooit:
SIS, 000 or laaa
SJSO.OOI u> SSOO.OOO
SlS.OOl to SSO.ODO
SSOO.OOl to $1,000,000
L • SSO.OOl to SIOO.OOO
r • KOTO thMn $1,000,000
H - SlOO.OOl to UJO.OOO
655
FINANCIAL DISCLOSURE REPORT (oonrd)
!!«■• of P«r«on Mportlng
Oliver. Solomon Jr.
Dat* of Report
3/10/94
VII. INVESTMENTS and TRUSTS -- income, value, transactions, onciudes those or spouse
and depcndCDt children; see pp. 18-27 of Instructions.)
tescriptloo of hMMmz*
{ijicludSTig truat uMta)
XAdicat«, wb«r« appUcabda, ovnar ot
tiia aatat by uaUg tiia paraBtJiatlcal
durlDQ
c.
Oroai valoa
•t ond o;
rjporun.
0.
Trajiaactlona during rvpcrtlag parlod
lio jodiviiuii Ma «pooui, -(sT^toi
••S«x<ta l»*n«ritap Ijf .pouM. 'IOC)'
toT ownarahlp try a*p«ndut child.
Plaa 'IXI" •fj«r ••ch.Mut
•xvapt xroK prior dlaclosuro.
(1)
kac,
12)
r«ot or
lot.y^
(1)
(j-p)
(2)
Talua
Ma:»od,
Coda''
bi^il,
Kugar,
If not kxaapt Zroa dlacloauxa |
(3)
Valna,
sain,
coda*
15)
Idaatliy of
bsYar7aallax
(it prlvata
trail aactloc)
NONE (Ho roportA^:*
lncoa«, •■■•ta, cr
tran»«ctloni)
i
1
AT&T common (J)
A
di V .
J.
T
3
Bell Atlantic common ( D(
)A
di V
J
T
3
Bell South common (J)
A
di V
J
T
1
4
Bristol Meyers common'.
) A
div
J
T
T
5
Centerior Energy cora(J
A
di V
J
T
X
E ■
6
Centerior Energv con(DC
A
div
J
T
1
■7
Centerior Energy com(DC!
A
div
J
T
T
1
CocaCola conn on (J^
A
div
J
T
9
ComAir co!r.non (DC)
A
div
J
T
" Dean Witter , ,,
Discoverv common (J)
A
div
J
T
'
11
Ford common (J)
A
div
J
T
1
12
Hpnpral Flprtrir romfj)
A
div
,1
T
11
n^,^ common (DC)
A
div
J
T
It
Glaxo common (DC)
A
div
J
T
IS
BF Goodrich common (J)
A
div
J
T
i<
Good V ear common (J)
A
div
K
T
n
Heinz common (J)
A
div
J
T
la
Home Depot common (J)
A
div
1
■ J
T
1*
K-"art common (J)
A
div
J
T
20
A
div
T
T
1 ISCOM/S^D Cod..; »-Sl,(»0 or !«»• >-Sl,001 to 52,500 C-S2.501 w 5,000 D-S5,001 to 515,000
rsa* Col. Bl i D«) I.S15,00I to SSC.OOO P-SSO.OOl to SIOO.OOO G-SIOO.OOI to Sl.OOO.OOO H-ltor. tl>«D }1. 000,000
TWT«codW.: J-liTtodB or i.M n-siS.odi to s56,64o l-?56,o6i to Si64.46o icSiocooi to 5.i50,ooo
(5o« Col. CI t, 03) H-S250.OOT to S500.000 05500,001 to 51.000,000 P-Ror« tl>«n 51.000,000
'TVtloM MXHoi Codti: "<3-Ks,Snitti K-Co.t (r^l .Itlt. only) a-A<>»u*nt T-c»th/)Urk»t
(SM Col. C2) 0-Boon v«lu» v-Otbsr W.K.tl».t«J
656
FINANCIAL DISCLOSURE REPORT (cont'd)
MajM of r«r«on Reporting
Oliver, Solomon Jr.
Oat* of teport
3/10/94
VII. INVESTMENTS and TRUSTS - income, value, transactions, (indudes those of spous*
and dependeot children; see pp. 18-27 of Instructioni.)
D«»criptlon of Au»t«
(iDcluxJlog zrtiMC UMta)
tb« •■■•i try uslag tiio p«-«ath«Uc«l
"(rj* for joiJit owr«riblp of Ttoaxr-
It; InUlviaiLil *Da ipoo.., ■(Sl'for
■ «>ftrat« o»rt;«r»tilp by «pou««, MOC)»
for otfoa£»nlp Dy a«p«s<3a&t c2iilc.
Pl«c« "(X)* atxmr ••ch ««ft«t
•xacpt iroa prior Olaclosur*.
B.
Iiooa*
«urlJS
r«porti=5
p«rlotf
c.
croas vjloa
•t %zt of
Trcr»«ctiona dcrls.? rvporslop period
U-l)
ID
Va2o«3
CoS?
(2)
VSIUO
Twl«ap-
I{ not flxopt. .£roB dlftcIo*ar« |
«=Bti-
B«y
(3)
coa.'
(J-?)
(it prlv»r«
NONE IKo r«port«bl«
lccoe«, Aiiats, or
tr&siactloaBl
]
1
,|r- common (J)
A
div
J
1
1
T
2
Merck common (J)
A
div
J
T
■Morrison Knudsen ...
c onnon ( J )
A
div
J
T
:
■C -. .: e c 0 rn 0 n ( J )
A
div
J
T
E
1
!
Pizific Telesis comr.(J)
A
div
J
T
X
F
6
Reebok comnon (DC)
A
div
J
T
,
p
7
S e = r s common ( J )
A
div
J
T
1
T
e
T<^'.ecor.r. . " A" cor.mor.(J)
A
div
J
T
!
s
PC':' Vp»-arhor cormon ^Jj
A
div
J
T
!
USX Steel conn on (J)
A
div
J
T
i
1
n
W s . "-I a r t common ( J )
A
div
J
T
12
Pu-.nam Global Growth (J
) A
div
J
T
^
1
1
i3
20-h Cent. Growth (DC)
A
div
J
T
X
r
i<
A
div
.1
T
^J
A
div
a
T
T
2C-h Cent Select (J)
'fcherter One Bank, Univ.
Hr=. OH (J)
A
int
T
K
'Cleveland Clinic Munici
■> A
T
int
J
'J-i:elity Ohio Tax
Free C J ;
A
int
J
T
" F-.delity Ohio Muni
Morey Market (J)
A
int
J
T
"T-ird Federal , ^
Cleveland (J)
A
int
J
T
I loamm/a^c CaiMt: »-Sl,K,0 or !••• 3-Sl.OOl to SJ.JOC 0-52.501 to 5,000 >.ii,00l to '15,000
(Sa. Col. Bl t D»l »-515,=01 to iSO.OOO F-i5C.001 to SIOO.OOO CSIOO 001 to 51.00C.O00 S-Hor. Ui.o ?l;°°gigg 1
SvilMCod..: J-SlSloOb or i..l I.Sii.6oi u, jSO.ioO L-SlC.iil to Jl4A,600 ■■5100,001 ta >i50,ooe
(Bw Col. CI < 1131 R-5250,Ofll tc 5500.000 O-5Se0,001 to 51.000.000 P-IU»r« tj>«n Sl.OOO.OOO _^
3 VAlM xmxioi Codx: a-Appt«l»«l Ir-CCM (r»»i •at^ta otly) S-Aa>ui«ot ^<aiB/Mir»»t ,<to;j
(laaCol.CS) U-«oo» v.lii» v«amr,. W-lrelMt«! >^ ,. jBt. ■
657
FINANCIAL DISCLOSURE REPORT (cont'd)
Hum of r«r»o3 Raponlng
_.OlJLver, .Solomon Jr.
Data ot
3/10/94.
VII. INVESTMENTS and TRUSTS - income, value, transactions, (includes those or spouse
and depcndcDt ctuldren; see pp. lS-27 of Instructioos.)
t±a •»•«£ try ua Ids t^« p<ur«Dt^ftU.cAl
'fjl" Zor 5cdnt owoarrtilp oC x«nort-
iig ladlYlaaal *=3 fcixTO** "'"'
Xoz. OW>T»>llp
658
FINANCIAL DISCLOSURE REPORT (cont'd)
N«iM of Parson Raporting
Oliver, Solomon Jr.
Data of Raport
3/10/94
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (indicate p.rt of Report.)
My wife is the remainder beneficiary under her deceased mother's will
of nnp half of the assets of a trust under which her father, who is still
alivp i ■; the income beneficiary. The ultimate value of that asset
cannot be determined at this time.
IX. CERTIFICATION.
In compliance with the provisioni of 28 U S C. § 455 and of Advisor.' Opinion No. 57 of the Advisory Committee on
Judicial Actmuei, and to the best of my knowledge at the tune after reasonable inquiry, I did not perform any adjudicatory
function in any Litigation during the period covered by this repon in which I. my spouse, o- my minor or dependent children
had a finannai interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I cenL^ that all information given above (including information pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was
withheld because it met applicable statutory provisions permitting non-disdosure.
I funher certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance vrith the provisions of 5 U.S.C.A. app. 7, § 501 et. seq., 5 U.S.C. § 7353 and Judicial Conference
regulations
^i^..ure X.-:^'^-^^™ U ---^ X. - Date,
W.^h'/
NOTE- ANY INDIVIDUAL WHO KNOWINdtY /VND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA APP. 6. § 104. AND 18 U.S.C. } 1001.)
FILINO INSTRUCTIONS:
Mail signed original and 3 additional copies to: Judicial Ethics Committee
Administrative Office of the
United Slates Courts
WashiogtoD. DC 20544
659
FINANCIAL STATEMENT
NET WORTH
Solomon Oliver,
and Fami 1 y
Jr.
Provide a ccmplete, cuirent fjiancial net wonh juierr.ent which iiemizes In de-^
all asset: (including bini accounts, real estate, securities, trusts, invesar.er.u. and other financiaJ
holdings) all liabilidcs (including debts, nwrgages, loans, and other financia} obligations) of
ycurself, ycur spouse, and other immediate members of your household.
ASSETS
UABIUTIES
Cub 00 huid &nd in bulu
2'S
OOf
on
8
80(
00
vt,t6<iit
1 L:n«d MPinBJi u'A icbidu*
317
41(
00
Nstti pt<nb!a 10 nl*t>>M
I.'nluK^ Mcu-i-<i->d4 ishcd^lt
Neici p«7ibl( ts 9L-.U1
AceojTU irti roici ru::vu)c^
1
1
Aoounu and billi due
1 I'.e frsrr. rtlt!.vti uid Sicsi
1
Un;iid iiiesnc ux
I)te from c'-Seri
i
OUie OBpiid Ukt uti ir:tnt:
1 Dcuotfji
i
1
1
ic>>eddc
?
1 nn
nn
, K«tl uuia a«nad-*dd Khadi;!c
87
ooc
00
Ca4tt^ inen|afc« and oihat li«rj pay-
•bic
Rak Jix:* a-.3.-lj>(ti .••Mivjhlc
!
OiMi d«%u i«.-niur
1 Aiuot ifvd oO't: ptraar*: prcpcnr
21
nor
no
Ciih >tJjt-Uc ;ri'^i.ice { | I
1 0^.:««..-,.r.^:FtISifi¥?;| *
loiooo
00
403(b)annuitvTIAA-CREF
202
ooc
00
*
1
iUum^.^ehir^fiHnh''
43|50C
00
'Silvercoins |
70d
00
TouJ Sabiliaci
?
inn
nn
iState Teacher's and Erapl,
iRprirpmpnr r.nnrrihiirion.s
73|aOC
00
NeiWonS
786
710
00 1
i ToUl Aotu
7fi8
Rlf
nn
TsBl liiUjtiM ud Kt vsnii
7RR
810
no
1 CONTINCENT UAilLmES
CENERAl, ISTORMA'nON
1 Ai aicnu. tomUxi er fu.-uior
An try mmu jitituP (Add Knad-
port
nome
8g§5
on
y
1 On kuei x eenncu
An 7SU dcftodait la wijr toki er U(il
•ctiantT
yes
L>|a: Cluri
.
Ki<c you f>w uk*s btnlmipir,''
no
f Pwviiier .'X Ttitni Ir.aCT.t Tu (
1
1 O-Jic' »pt;-:»J (kf. j
1
_J
In addition: My wife is the beneficiary under her deceased mother's will
of one half of the assets of a trust under which her living father is the
income beneficiary. The value of this potential asset cannot be de-
termined at this time. Also, my wife, sons and I stand to inherit some
money under my aunt's will in an amount which is undetermined but will
probably be in the $25,000 range. Neither amount is included above.
660
Solomon Oliver, Jr. and Family
Listed Securities - Schedule 2
Louisa and Solomon Oliver, Jr.
STOCK
Number
Name
200
A T S, T
100
Bell South
200
Bristol Meyers Squibb
300
Centerior Energy
100
Centocor
200
CocaCola
78
Dean Witter
100
Ford
100
General Electric
100
B.F. Goodrich
400
Goodyear
100
Heinz
133
Home Depot
200
K Mart
100
May Company
100
MCI
300
Merck
200
Morrison Knudsen
100
Nike
600
Pepsi
100
Pacific Telesis
200
Sears
129
USX Marathon
24
USX Steel
200
Telecommunications "A
13
Venture
400
WalMart
TOTAL
Value
$11,200.00
5,625.00
11,326.00
3,750.00
1,236.00
8,250.00
2,994.00
6,750.00
10,800.00
4,138.00
19,052.00
3,438.00
4,972.00
3,950.00
7,726.00
5,526.00
10,539.00
5,076.00
5,188.00
24,000.00
5,700.00
10,045.00
2,029.00
1,035.00
5,526.00
299.00
10,100.00
$190,297.00
2. MUNICIPAL BONDS
Name
State of Ohio Hospital Improvement Revenue
Refunding Bond (Cleveland Clinic Foundation
Project - Series 1983)
State of Ohio Water Development Revenue
Financinq Bond, Safe Water Refunding
1987 Series B
TOTAL
Amount
$10,000.00
10,000.00
$20,000.00
661
Listed Securities - Schedule 2 (page 2)
Solomon Oliver Jr. and Family
A. Louisa and Solomon Oliver, Jr., continued
3. MUTUAL FUNDS, MONEY MARKET FUNDS, BOND FUND
Name
Twentieth Century Select
Putnam Global Growth
Fidelity Tax Free (Ohio) High Yield
Fidelity Ohio Muni Money Market Portfolio
TOTAL
Amount
$25,000.00
14,400.00
9,254.00
7,754.00
$56,408.00
B. Solomon
Michael Oliver -
son
1 . STOCK
Number
Name
100
Bell Atlantic
100
ComAir
100
Glaxo
TOTAL
Value
$5,600.00
2,525.00
1,975.00
$10,100.00
2. MUTUAL FUND
Name
Twentieth Century Growth
TOTAL
Amount
$17,000.00
$17,000.00
662
Listed Securities - Schedule 2 (page 3)
Solomon Oliver, Jr. and Family
C. Jonathan Douglass Oliver - son
1. STOCK
Name
Number
100
100
3
100
Centerior Energy
Glaxo
Harcourt General
Reebok
2. MUTUAL FUND
Name
Twentieth Century Growth
TOTAL
TOTAL
Value
$ 1,250.00
1,975.00
105.00
3,275.00
$ 6,605.00
Value
$17,000.00
$17,000.00
D. GRAND TOTAL
Al + A2 +A3 + Bl + B2 + CI + C2 =
$317,410.00
663
Solomon Oliver Jr. and Family
U.S. Government Securities - Schedule 1
A. Solomon Michael Oliver - son
Series E Bonds approximate value $4,000.00
B. Jonathan Douglass Oliver - son
Series E Bonds approximate value $4,800.00
A + B TOTAL = $8,800.00
NOMINATIONS OF THEODORE McKEE, TO BE
U.S. CIRCUIT JUDGE; BILLY MICHAEL
BURRAGE, VANESSA GILMORE, TERRY C.
KERN, GLADYS KESSLER, AND EMMET SUL-
LIVAN, TO BE U.S. DISTRICT JUDGES
THURSDAY, MAY 12, 1994
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 10:32 p.m., in room
SD-226, Dirksen Senate Office Building, Hon. Howell Heflin pre-
siding.
Also present: Senator Specter.
OPENING STATEMENT OF SENATOR HEFLIN
Senator Heflin. The hearing will come to order.
If all the Senators and Congressmen are here to introduce our
nominees, if they will be seated at the table, we will let them do
the introductions and then excuse them so they can go about other
business.
Senator Boren, I believe you are the senior one right now, you
and Senator Nickles, so if you would go ahead.
STATEMENT OF HON. DAVID L. BOREN, A U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator BoREN. Thank you very much, Mr. Chairman.
I am pleased that you and I share the same seniority. It is a
privilege to appear before the committee today on behalf of two ex-
traordinary and outstanding nominees from the State of Oklahoma,
and let me introduce them in alphabetical order to you. They will
be coming to present testimony and to answer your questions a lit-
tle later on.
The first is Michael Burrage. I might ask judge-designate
Burrage to stand, if he would, so you will be able to know him. He
has been nominated for the LF.S. District Court for the Northern,
Eastern, and Western Districts in Oklahoma. We refer to this as
the roving position in the State, because this judge serves all three
districts.
He was bom in Durant, OK. He now lives in Antlers, OK, and
he is married to Carolyn Booker Burrage of Antlers. He is a long-
time law partner of Mr. Joe Stamper of Antlers, who I think is one
of the senior members to have ever served in terms of longevity
service in the House of Delegates of the Americ£in Bar Association.
(665)
666
Mr. Chairman, you may well have encountered him in your earlier
life.
Mr. Burrage is a member by blood of the Choctaw Tribe of Okla-
homa. He served as general counsel to the principal Chief of the
Choctaw Nation in the 1970's. And it is my belief that, upon his
confirmation, that he will become the first Native American sitting
as a district judge in our country.
He is a graduate of Southeastern Oklahoma State University
with a degree in business administration. He went on to the Uni-
versity of Oklahoma Law School, where he received his juris doc-
torate degree, and had an outstanding record as one of the finest
students to ever come through the law school, graduating Order of
the Coif, and was editor of the Oklahoma Law Review.
Since he graduated from law school in 1974, he has worked, as
I mentioned, with the law firm of Stamper, Otis & Burrage in Ant-
lers, OK, and is now a partner of the firm which is currently
known as Stamper & Burrage.
His career has been concentrated in trial and appellate practice,
and he has handled both civil and criminal cases in the State and
Federal courts. He has quite a reputation as one of the finest court-
room lawyers in our State and also one of the finest brief writers
at the same time. So it is a career that is marked by scholarship
and courtroom ability.
He has been president of the Oklahoma Bar Association and
comes with a very high recommendation of his colleagues in that
organization who elected him as president. He served also as a
trustee of the Oklahoma Bar Foundation. He was appointed by the
Oklahoma State Supreme Court to serve as a member of both the
Oklahoma Supreme Court Committee for Uniform Civil Jury In-
structions and the standing committee to monitor and revise these
instructions.
He has been chairman of the Uniform Rules Committee for the
U.S. District Court of the Eastern District of Oklahoma, and he is
also a member of the American College of Trial Lawyers and a fel-
low of the American Bar Foundation, and has himself served as a
member of the House of Delegates.
I think you can see, Mr. Chairman, that this is a person who has
extraordinary respect within the legal profession in Oklahoma, cho-
sen by his peers again and again to provide leadership to the pro-
fession.
It has been my privilege to know him for many years, and I can
tell you and members of the committee that, in my opinion, he
would become, upon the initiation of his service, one of the most
outstanding intellectually keen members of the bench, and also one
in whose character we can have total and complete confidence. He
is a person of integrity and fairness.
The second nominee that I am privileged to present this morn-
ing, and I would ask him to stand, is Terry Curtis Kern. Mr. Kern
has been nominated by the President to be a U.S. district judge in
the U.S. District Court of the Northern District of Oklahoma,
which sits in Tulsa, OK.
He was born in western Oklahoma, in Clinton, grew up in Ponca
City, which is a community known to my colleague from Oklahoma,
Senator Nickles. He now lives in Ardmore, OK, where he has lived
667
a number of years. He is married to Mary Charlene Kern, and they
have a wonderful and talented family, as does Judge Burrage.
He is a graduate of Oklahoma State University. But in spite of
the fact that I am now president-designate of another university in
the State, I will not hold that against him. He managed to get a
very fine education there, with a B.S. degree. He went on to the
University of Oklahoma School of Law, where he received his juris
doctorate. He had a legal research and a teaching assistance schol-
arship during his time at the University of Oklahoma, which indi-
cates the high regard in which he was held by the faculty, and he
was president of Phil Delta Phi International Legal Fraternity dur-
ing that period of time.
He currently serves as senior partner of Kern, Mordy & Sperry,
a very fine law firm in Ardmore, OK, and he has practiced in Ard-
more in southern Oklahoma since 1970. His practice has empha-
sized virtually every area, particularly litigation, products liability,
personal injury. He is increasingly active in the health care area,
serving as general counsel to the Memorial Hospital of Southern
Oklahoma.
He was one of the first attorneys in southern Oklahoma to use
computer-generated video reenactment to demonstrate certain as-
pects of cases. From 1969 to 1970, he had experience here, serving
as general attorney in the Bureau of Deceptive Trade Practices, Di-
vision of Compliance of the Federal Trade Commission.
He is active with the Oklahoma Bar Foundation, has been a
trustee of the Oklahoma Bar Foundation for a number of years,
and has served as president of the Oklahoma Bar Foundation. He
has also been very active, of course, in the Oklahoma Bar Associa-
tion, Southern Oklahoma Legal Institute, and many other profes-
sional organizations, and also renders great service to his conimu-
nity. He has been a member of the pro bono panel of Legal Aid of
Western Oklahoma, and has also rendered great service there.
He, again, a person that I have known very, very well. I know
him both in terms of his professional reputation, which is extraor-
dinary, but I know him also individually as a fine, reliable and
very capable human being.
I might mention to the chairman that both of these judges also
come highly recommended by a former Oklahoma trial judge
known to you, who is with them here this morning, Molly Shi
Boren, who served as a colleague with them in the legal profession
before the time that she herself left the bench, and she also joins
me in knowing that her opinion might have greater weight with
the chairman of the committee than mine. I cite her to you, and
her enthusiastic recommendation, as well.
But it is a real privilege for me to be able to be here today and
present these two nominees of the President to you for your consid-
eration and the consideration of the committee for confirmation.
Senator Heflin. Thank you, sir.
Senator Nickles.
STATEMENT OF HON. DON NICKLES, A U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator Nickles. Judge Heflin, I will be very brief. I think my
colleague has said most everything that needs to be said. I would
668
like to echo that strong support. We have bipartisan support for
both nominations.
I have had the pleasure of knowing Terry Kern for a long time.
As Dave mentioned, he had the wisdom of growing up in Ponca
City, OK, and so I have known Terry for a long, long time and I
think he is an outstanding nomination and will do a super job. He
has a great reputation. He has been very active in the Ardmore
community.
Michael Burrage, as well, is a member of a very distinguished
law firm in southeastern Oklahoma, has an excellent reputation
within the legal community, also within the legal profession, but
also in southeastern Oklahoma.
I compliment Senator Boren and his nomination committee for
putting forth two outstanding nominees who I think will serve
Oklahoma and the country quite well on the Federal bench. I com-
pliment them and congratulate both nominees.
Senator Heflin. Senator Wofford, do you have someone?
STATEMENT OF HON. HARRIS WOFFORD, A U.S. SENATOR
FROM THE STATE OF PENNSYLVANIA
Senator Wofford. Senator Heflin, thank you very much.
I am delighted to come before the committee this morning to in-
troduce Theodore A. McKee, who has been nominated by the Presi-
dent for the Third Circuit U.S. Court of Appeals.
Judge McKee, if you would stand and be counted. In due course,
you will not stand and deliver, you will sit and deliver. You are a
person who has stood and been counted on many fronts of service
in our community.
Judge McKee is accompanied today by his wife Ana, his daugh-
ters Emilia and Marisol, his brother Clarence and his mother Etta.
I wonder if they would be willing to stand.
There is an extended family. I gather he learned his first lessons
in justice in that very fine family.
Judge McKee earned his bachelor's degree from the State Uni-
versity of New York at Cortland. Following graduation, he became
director of minority recruitment and admissions for the State Uni-
versity of New York at Binghamton, and graduated magna cum
laude in 1975 from Syracuse University Law School, and was
awarded the Order of the Coif.
As a young attorney, he was a litigator at the Philadelphia law
firm of Wolf, Block, Schorr & Solis-Cohen. Following his stint in
private practice, he served 8 years as a government prosecutor,
first as an assistant U.S. attorney for the Eastern District of Penn-
sylvania, where he worked in the General Crimes Unit, the Narcot-
ics and Firearms Unit, and Political Corruption Unit. He then be-
came deputy solicitor for Philadelphia's Law Department.
In 1983, Judge McKee was elected to the Court of Common Pleas
for the First Judicial District of Pennsylvania, where he has served
for the past 11 years.
Judge McKee's accomplishments on the bench were recognized in
1986, when he was appointed by the chief justice of the Pennsylva-
nia Supreme Court to the Commonwealth's Commission on Sen-
tencing, where he currently serves as acting chair. In addition to
669
his outstanding legal career, Judge McKee has committed himself
to a life of service and active-duty citizenship.
He is a long-time member of the Big Brothers Program, has
served on a number of civic boards, including Crisis Intervention
Network, Crime Prevention Association, New Directions for
Women, and Concerned Black Men. He has earned the respect not
only of members of the bench and bar in southeastern Pennsylva-
nia, but of many people throughout our whole community.
I am confident that, once confirmed. Judge McKee will serve with
distinction on the third circuit, which has been graced with some
of the finest judges in our Nation. It is a tradition built on the
shoulders of distinguished jurists like William H. Hastie, who in
1949 became the first African-American in our history to sit on a
Federal court of appeals. Judge McKee will carry on that high tra-
dition.
I thank you, Mr. Chairman and Senator Biden, for the expedi-
tious hearing, because the sooner Judge McKee is able to serve on
the third circuit bench, the better for our country and for justice.
Senator Heflin. Senator Specter, who is a member of the com-
mittee, just came in and we were talking about Judge McKee.
Would you have some remarks?
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman.
I appreciate being recognized to join with my colleague Senator
Wofford in presenting Judge McKee to this committee. I hope it is
not a conflict of interest to present him to the committee, to rec-
ommend him to the committee, to recommend him to the Senate
and then to vote for his confirmation.
Senator Heflin. What are you going to do, resign from the com-
mittee? [Laughter.]
Senator Specter. That might not help the committee as much as
it would help the Senate if I resigned from the Senate, in which
case I might become a competitor for the third circuit.
I will not go through Judge McKee's illustrious resume, because
Senator Wofford has already done an excellent job in doing that.
I have had the opportunity to sit and talk with Judge McKee at
some length about his prospective appointment, and I am con-
vinced he will be an outstanding addition to a very distinguished
court, the Court of Appeals for the Third Circuit.
Judge McKee has a distinguished record. He has been a common
pleas judge in Philadelphia for 10 years, and that is tough duty.
It is a large, tough city with a very heavy criminal backlog. It had
30,000 cases a year on the criminal docket when I was D.A. there,
including 500 homicides, and also a very extensive civil list. When
you sit in that court for 10 years, you gain a lot of experience and
a lot of know-how.
Before that, he was a prosecuting attorney, which I think is good
experience, and he worked for a very distinguished law firm. Wolf,
Block, Schorr & Solis-Cohen. I once interviewed for that firm and
was offered a summer job and was told that I would be permitted
to sit and twiddle my thumbs and look at the ceiling. I did not take
the job, but I know it is a strong law firm.
670
He comes to a really outstanding court, the third circuit, and I
think he will be a very fine addition there. I am pleased to join
Senator Wofford in recommending him to the committee. The only
recommendation that I might have which would take precedence
over this one, Mr. Chairman, would be that perhaps if President
Clinton cannot make up his mind on the Supreme Court, he has
a good prospect here in Judge Ted McKee.
Thank you, Mr. Chairman.
Senator Heflin. Thank you.
Delegate Eleanor Holmes Norton.
STATEMENT OF HON. ELEANOR HOLMES NORTON, A
DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA
Delegate Norton. Thank you, Mr. Chairman.
I have to offer to you today two nominees who are outstanding
for what they have accomplished and for what they represent in
the jurisdiction they will serve, the District of Columbia.
Let me say a word, if I may, Mr. Chairman, as to the latter point
first. These are the first nominees to the U.S. District Court for the
District of Columbia to be recommended by the residents of the
District of Columbia.
President Clinton, for the first time in our history, has accorded
to the District of Columbia, this Capital City, the privileges and
the courtesies long granted to Senators in the selection of district
court judges, the U.S. attorney and the U.S. marshal.
These two nominees are among a group recommended to me by
my 17-member judicial nominating commission. I believe you will
find that the extraordinary quality of todays nominees is a testa-
ment to the dedicated and skillful work and superior judgment of
my commission, and that you will find that these nominees are a
vindication of President Clinton's view that the rights accorded to
other Americans cannot in principle be denied to the residents of
the District of Columbia.
The first judge, Gladys Kessler, I am going to ask Judge Kessler
to stand, and if her husband Art Mackwell is here, perhaps he
would stand, as well.
Judge Kessler is one of the most distinguished, experienced and
one of the most respected judges in our local court system. She has
served for 17 years on the District Superior Court. She has been
a leader on that court, and is nationally recognized for her leader-
ship among her peers.
Among her extensive national service, for example, has been the
presidency of the National Association of Women Judges. She
served on the board of the National Center for State Courts. She
has had leadership roles in the American Bar Association.
Here in the District, however, she has been an architect of court
reform itself. On our superior court, she led the much-acclaimed
multi-door Disputes Resolution Program and the Voluntary Arbi-
tration Program that encourages techniques that settle and medi-
ate disputes, something our courts need to do much more of, Mr.
Chairman. These techniques and her leadership have greatly added
to the efficiency of our local courts. She has been a leader of alter-
native disputes resolution of family law, including being the presid-
671
ing judge of the family division of our superior court, and she is
an expert on bioethics.
She is recognized for her judicial contributions and her civic con-
tributions to the city. Among the many awards, one by the Trial
Lawyers Association called the Judicial Excellence Award. She is
a graduate of Harvard Law School.
I am just as happy to present to you, as well. Associate Judge
for the District of Columbia Court of Appeals, Emmet Sullivan. I
am going to ask Judge Sullivan if he would stand and if his wife
Nan, who is here with him, would stand, his son Eric who is here,
and his father who is also here, if they would stand.
Mr. Chairman, I take special pride in this very successful 100
percent hometown product, as a native Washingtonian myself, be-
cause Judge Sullivan was bom and educated here in the District
of Columbia, from kindergarten all the way through law school, a
McKinley High School graduate, Howard and Howard Law School,
a partner in an old and, indeed, the oldest African-American law
firm in this country. And surely some of its most distinguished law
firm partners before him have included such stars of the judiciary
as the late Chief Judge of the U.S. Court of Appeals for the Third
Circuit, William Hastie, and former Chief Judge of the U.S. Dis-
trict Court for the District of Columbia, William Bryant.
The rapid rise of Judge Sullivan in our judiciary makes its own
statement about his reputation and his ability. He was appointed
to our trial court, our superior court in 1984, and he has been a
member of our highest court since February 1992. He served as a
presiding judge of the probate and tax divisions. He has taught as
an adjunct professor at the Howard University School of La^y, and
he has been generous in his many contributions to civic activities
in this city.
These two nominees, Mr. Chairman, are nominees any Senator
or a Member of Congress would be proud to sponsor before this
body. I am pleased to strongly recommend to you Judge Gladys
Kessler and Judge Emmet Sullivan.
Thank you.
Senator Heflin. Thank you.
I believe we have Texas day. We have Senator Brooks and Con-
gressman Andrews, if they would come forward and give us a
Texas flavor, and Senator Kay Bailey Hutchison.
STATEMENT OF HON. KAY BAILEY HUTCHISON, A U.S.
SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Thank you. Senator Heflin.
Mr. Chairman, I want to say I am very pleased to be here with
two distinguished Congressmen from my State in support of
Vanessa Gilmore before your committee for the Federal judgeship
in the District Court for the Southern District of Texas.
Senator Gramm and I have a Federal judicial evaluation commit-
tee of 10 distinguished lawyers in Texas that are very bipartisan,
and they interviewed Ms. Gilmore and looked at her record and
recommended her to us.
She graduated from Hampton University in Virginia and the
University of Houston School of Law. I have seen her as a civic
leader in Houston and in Texas. She has been very active in com-
672
munity affairs. She served as chairman of our Texas Department
of Commerce Board. She has been president of the Greater Hous-
ton YWCA, and chairperson of Texans for NAFTA.
She has received numerous awards in the community. I support
her nomination and I believe she should be confirmed by the Sen-
ate. I want to congratulate Vanessa and her family who are here
today. This is a great honor and a great one for Texas, and I am
very pleased to be here in support of Ms. Gilmore.
Thank you.
Senator Heflin. Chairman Brooks, we are delighted to see you
here with the committee.
STATEMENT OF HON. JACK BROOKS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Representative Brooks. Mr. Chairman, I am honored to be here
to introduce to my colleagues in the Senate. I think the Senate is
going back to a markup.
Senator Hutchison. I am sorry, we are in the Armed Services
Committee and I really do apologize.
Representative Brooks. You are interested in the defense of this
country, and we appreciate your efforts.
Senator Hutchison. Thank you.
Representative BROOKS. I want to introduce to my colleagues in
the Senate a fine Texan and nominee for the U.S. District Court
for the Southern District of Texas, Ms. Vanessa Gilmore.
She is an attorney practicing in Houston, specialized in commer-
cial litigation, in 1991 was appointed by Gov. Ann Richards to the
Texas Department of Commerce's policy board, and served as the
board's chairperson — that used to be chairman — chairperson. The
newest way is to call them chairs. Now that is a funny one, every-
one is a chair. I guess you have got four legs.
Senator Heflin. That is not as bad as a mailman. Do you know
what a mailman is now?
Representative Brooks. What?
Senator Heflin. A person-person.
Representative Brooks. You are bad. [Laughter.]
But she has got a full plate of civic and community activities, in-
cluding positions on St. Joseph's Hospital Advisory Board and the
Neighborhood Recovery Community Development Cooperation
Board.
In addition to her community services and activities, she is a
member of several professional organizations and associations, and
I believe that you will find that she is capable and qualified to fill
the position of U.S. District Judge for the Southern District of
Texas.
She is accompanied by her daddy, Clinton Gilmore, from Wash-
ington, DC, and her mother Laura from Atlanta, and her brother
David, who lived in Washington, DC. Where is David? David got
on the front row now. [Laughter.]
I thank you for your consideration of her nomination, and I ap-
preciate the opportunity to be here. If I may, if you have any ques-
tions I will answer them, but if you do not, I am going to go back.
We are having a hearing on aviation product liability. They want
to say that you cannot sue those airplanes, you have just got to sue
I
673
the people. It is kind of interesting. You passed something Uke that
over here, you know.
Senator Heflin. We failed to protect the public.
Representative BROOKS. Well, there is some problem about the
public and we are going to try and do that.
I want to thank you very much.
Senator Heflin. Let me ask one question.
Representative BROOKS. Yes, sir.
Senator Heflin. Is she a Democrat?
Representative BROOKS. I believe that she is. [Laughter.]
I believe that she is, yes, sir. I have confidence that she is.
Senator HEFLIN. Congressman, is the Pope Catholic? [Laughter.]
Congressman Andrews.
STATEMENT OF HON. MICHAEL A. ANDREWS, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Representative Andrews. Thank you very much, Mr. Chairman.
I am Michael Andrews, and I represent the 25th Congressional
District in Eastern Texas.
I am here first to attest that Vanessa Diane Gilmore is a Demo-
crat. She is one of my constituents.
I am really honored to be here to participate in recommending
her nomination to be forwarded to the full Senate for confirmation.
Vanessa is an outstanding leader in Houston. She has led an ex-
emplary life, and her reputation is flawless. She has been a star,
as a student, as a specialist in commercial litigation. She grad-
uated from the University of Houston Law School, and Hampton
University was her undergraduate work.
She has been a part of the younger leadership in Texas for over
a decade, and during that time she has distinguished herself not
just in the legal field, which she has done, but in her participation
in civic and community and professional organizations from St. Jo-
seph's Children's Hospital to the Development Board of Texas
Southern University, to neighborhood community redevelopment
boards, and, most importantly, probably, she was appointed by
Gov. Ann Richards to represent the Texas Department of Com-
merce. She was the first African-American to be appointed to such
a position.
She has done everything anyone could ask to be qualified for this
important position, and one that very necessarily needs to be filled
in the Southern District of Texas. President Clinton has recognized
her achievements, and I think the quality of leadership and the
kind of person that she is, when he nominated her this March to
serve as a U.S. district judge for the Southern District of Texas.
I am honored to be here to second that nomination.
[The prepared statement of Mr. Andrews follows:]
Prepared Statement of Congressman Michael A. Andrews
Mr. Chairman, it is a pleasure to come before the Committee to introduce Ms.
Vanessa Diane Gihnore, a constituent of mine, to the Committee and strongly rec-
ommend that her nomination be forwarded to the full Senate for confirmation. I
thank you for extending me this opportunity. . .
Vanessa Gilmore is currently a practicing attorney in Houston, Texas, speciahzmg
in commercial Utigation. A graduate of Hampton University and the University of
Houston Law School, Ms. Gilmore has been in my part of Texas for the past thirteen
years. During these years, she has distinguished herself among her colleagues in the
674
legal field. She has participated in a number of civic, community, and professional
organizations and currently serves on the St. Joseph's Hospital Advisory Board, the
Texas Southern University Foundation Board, the Neighborhood Recovery Commu-
nity Redevelopment Corporation Board, the Texas Lyceum Association and the Uni-
versity of Houston Law School Alumni Board. She is a past president of the Greater
Houston YWCA and currently serves on the YWCA advisory board.
But, Ms. Gilmore is more than just a civic-minded, altruistic lawyer. In 1991, Gov-
ernor Ann Richards appointed Ms. Gilmore to the Texas Department of Commerce
Policy Board, making her the first African-American ever to serve on the board. As
chairperson of the Board of Directors for the Texas Department of Commerce from
1992 to 1994, Ms. Gilmore ably represented the Governor on behalf of economic de-
velopment in my state. And, near to my heart, she served as chairperson of Texans
for NAFTA.
Mr. Chairman, President Clinton recognized the extraordinary achievement and
quality of leadership that Ms. Gilmore exemplifies when he nominated her this
March to serve as United States District Judge for the Southern District of Texas.
I have full faith that the Committee will agree with the President, and I look for-
ward to her speedy confirmation by the full Senate.
Again, thank you, Mr. Chairman.
Senator Heflin. Thank you, sir.
If all of the nominees, Judge McKee, Mr. Burrage, Ms. Gilmore,
Mr. Kern, Judge Kessler, and Judge Sullivan, if you will come for-
ward and raise your right hand, let me give you the oath.
Do each of you solemnly swear that the testimony that you will
give at this hearing and before this committee will be the truth,
the whole truth, and nothing but the truth, so help you, God?
Judge McKee. I do.
Mr. BuRRAGE. I do.
Ms. Gilmore. I do.
Mr. Kern. I do.
Judge Kessler. I do.
Judge Sullivan. I do.
Senator Heflin. Judge McKee, if you will have a seat, we will
start with you. We are delighted to see you.
TESTIMONY OF THEODORE McKEE, OF PENNSYLVANIA, TO BE
U.S. CIRCUIT JUDGE FOR THE THIRD CIRCUIT
Senator Heflin. First, I think you have some members of your
family, but any friends or anybody else that you or any of the other
nominees would like to introduce that we are present, we would be
delighted for you to do so.
Judge McKee. Senator, I appreciate that.
My immediate family was introduced and stood up. I do have
some other family members and friends I would like to introduce
to the committee and ask your indulgence in that.
My mother-in-law Francisca Pujols. In addition to her other tal-
ents, she made the dresses that both of my daughters are wearing
on one day's notice, by the way.
My sister-in-law, from New York City, Ada Torres; and my
nieces, her two daughters, Quetzali Torres and Rosana Torres. An-
other sister-in-law, Rosa Pujols. A friend of the family, Hayford
Baido; and another friend of the family, Ms. Terry Comer; and one
other friend and former colleague, Mr. Andy Purde, who is counsel
on the staff of the U.S. Sentencing Commission, who was kind
enough to come over and support me here today.
675
I would also just add my brother, in addition to his other won-
derful achievements and support, is a former Senate staffer, and I
wanted to call that to your attention.
QUESTIONING BY SENATOR HEFLIN
Senator Heflin. Judge McKee, if you are confirmed as an appel-
late judge, at some point you may be faced with applying a Su-
preme Court precedent of which you do not personally agree.
Would you consider yourself bound by such a precedent?
Judge McKee. I would be absolutely bound by that.
Senator Heflin. Of course, you will also be faced with cases in-
volving issues in which the Supreme Court has not ruled. In many
of those cases, however, you will have decisions from the third cir-
cuit on which to rely. Under what circumstances, if any, do you be-
lieve an appellate judge should overturn the precedent within his
or her own circuit?
Judge McKee. I do not foresee any precedent, any situation that
would justify a circuit court judge overturning the prior decision or
his or her own circuit.
Senator Heflin. You served on the court of common pleas for 10
years, and you also have experience as a deputy city solicitor for
the city of Philadelphia and as an assistant U.S. attorney for the
Eastern District of Pennsylvania. In what ways do you believe that
your experience has prepared you for a position on the third cir-
cuit?
Judge McKee. Sitting as a State court judge, I have for the past
10 years had to very thoughtfully and carefully think about issues
and the people directly affected by those issues. I also have been
during my tenure in the court exposed to both civil and criminal
litigation. I also prior to that, as you know, was an assistant U.S.
attorney, and during the period of time that I was a Federal pros-
ecutor has exposure to some of the issues of the Federal system
and the form of the Federal court.
Senator HEFLIN. Since your inception, the Federal sentencing
guidelines have been the subject of debate. In fact, one district
court judge resigned because, according to press accounts, he could
no longer follow Federal sentencing guidelines in criminal cases.
The press reported that this Federal judge felt that the mandatory
guidelines were too harsh and too rigid.
Your questionnaire indicates you have served on the Pennsylva-
nia Sentencing Commission, and you were appointed by the Chief
Justice in 1986, and you currently serve as chairperson of the com-
mission, and you also chair a subcommittee that analyzes the sen-
tencing guidelines and makes recommendations to the full commis-
sion for general changes to their substance and form.
However, you also indicated on the questionnaire that you had
been reversed by the Superior Court of Pennsylvania for deviating
from the sentencing guidelines. For example, in the case of Com-
monwealth V. Cleveland Amos, you sentenced the defendant, who
was convicted of knowing or intention of possession of a controlled
substance and manufacture and delivery or possession with intent
to manufacture or deliver a controlled substance, to incarceration
of no less than liy2 months and no more than 23y2 months, fol-
lowed by a period of consecutive probation of 10 years.
676
The factors that you considered in determining the sentence in-
cluded a small quantity of the sale, the defendant was 49 years old,
was at a point in life where "his current activity is aging out." The
defendant supported 8 children, he had never been in an inpatient
treatment program, he showed remorse for his involvement with
drugs. You wrote that, "It must be remembered that the purpose
of the Sentencing Commission is to guide, not compel judges in
their sentencing task."
The Pennsylvania Supreme Court reversed the sentence and held
that, "while the factors relied on by the trial court may have justi-
fied sentencing within the mitigated minimum range, we see noth-
ing which justifies the sentence actually imposed." Based on these
experiences, what do you see as the pros and cons of mandatory
sentencing?
Judge McKee. Senator, let me begin by first of all addressing the
specific instances that you have mentioned. I was, as you correctly
point out, reversed in those two instances, and I certainly respect
that and respect the decision of the superior court.
I would add, however, that Pennsylvania guidelines are very dif-
ferent than the Federal guidelines. The Pennsylvania gTjidelines
are just that, they are recommended sentences and the judges in
Pennsylvania have a duty to consider those guidelines along with
all of the other circumstances in the case, but they are not pre-
sumptive valid sentences, as would be the case in the Federal sen-
tencing guidelines.
In those cases, the superior court, as you mentioned, agreed with
the factors that I relied upon and weighed in imposing a sentence
less than the guidelines. They simply weighed those factors dif-
ferently. I would point out that after those two cases were reversed
by the superior court, the Pennsylvania Supreme Court, in a case
called Commonwealth v. Sessums in 1988, implicitly overruled the
cases that the superior court had relied upon in reversing my deci-
sion, primarily Commonwealth v. Hutchins, and adopted the view
of the Pennsylvania guidelines which I had set forth in both of
those cases, and particularly in the quotation which you just point-
ed out.
In terms of the policy question that you ask, that is simply a
matter of policy, as you quite correctly state, and it would be my
duty as a judge, if I am fortunate enough to be confirmed, to follow
the laws that I would take an oath to do, and I would so, and it
would be up to this body in its wisdom to enact whatever guide-
lines and sentencing laws it deems appropriate, and up to me as
a judge to follow that.
Senator Heflin. What do you see as pros and cons relative to it?
I mean this issue may come back again before the courts. We may
hold some oversight hearings just to review where it is at the Fed-
eral level. We have a lot of complaints from judges particularly
that extending the guidelines and the mandatory sentences in-
volved therein and the ranges sometimes create a great deal of
problems and harshness that perhaps ought to be prevented.
Judge McKee. Well, there are pros and cons, and reasonable
people can disagree on how they come out on that. In my rule as
chairperson of the Pennsylvania Sentencing Commission, I serve a
different capacity. I serve in a capacity which is quasi-legislative.
677
and under our enabling legislation, part of my function is to make
certain recommendations to the legislature.
However, in my capacity here today, hopefully as being con-
firmed as a judge, I am a bit uncomfortable responding to that, be-
cause it is a policy matter and, again, my only obligation is to fol-
low the law that is passed by this body in its wisdom, and those
issues that I might be speculating on now could conceivably come
before me in the form of a challenge to the guidelines, no matter
what form they might take.
Again, respectfully, Senator, I am a bit uncomfortable answering
that policy question in my capacity here today.
Senator Heflin. We might call you back.
Judge McKee. Senator, if I am fortunate enough to be confirmed,
I would be honored to be called back and put on a different hat and
respond.
Senator Heflin. Thank you, sir. We appreciate your testimony.
Judge McKee. Thank you. Senator.
Senator Heflin. We will call now Mr. Burrage, if you will come
forward.
TESTIMONY OF BILLY MICHAEL BURRAGE, OF OKLAHOMA, TO
BE U.S. DISTRICT JUDGE FOR THE NORTHERN, EASTERN,
AND WESTERN DISTRICTS OF OKLAHOMA
Senator Heflin. You had quite a fine introduction, but the words
of Judge Boren were much more compelling than Senator Boren
right now.
Mr. Burrage. Thank you, Senator.
Senator Heflin. She might have a paiticular interest, since she
has some Native American blood in her, too.
Mr. Burrage. Well, she helped me through law school, the only
way I got through, and now she is here today to help me.
Senator Heflin. Are there members of your family or friends
that you would like to introduce?
Mr. Burrage. Yes, Senator. I have with me here today my oldest
son, Sean, who is a new lawyer, my brother Steve, and my dear
friend Jim Rosenthal from Antlers.
Senator Heflin. If they would please stand.
Anybody else you want to introduce that is with you.
Mr. Burrage. No, sir.
Senator Heflin. I know many of your friends would have loved
to be here, but the air fare between here and Oklahoma is a little
expensive, and we realize that.
Mr. Burrage. It certainly is.
questioning by senator heflin
Senator HEFLIN. What would you do, if faced with a tenth circuit
precedent that controls a matter before you, but with which you
personally disagreed?
Mr. Burrage. My personal views would have nothing to do with
it, and I would follow the tenth circuit decision.
Senator Heflin. In evaluating candidates for the bench, this
committee traditionally has looked not only at nominees' creden-
tials and professional background, but also their temperament.
Good temperament and demeanor are characteristics which I think
678
everyone should agree are some of the most important qualities
needed in judges. Given your background and prior experience,
please speak about the role and significance of judicial tempera-
ment.
Mr. BURRAGE. Well, the litigants that come before a court and
the lawyers that come before a court should be treated with re-
spect. They have serious disputes, they have serious problems, and
a judge should be very reserved, I believe, and nice to people. There
is no reason not to be nice to the people.
Senator Heflin. Well, we notice that as Federal judges grow in
their office, they more and more think that they are anointed, rath-
er than appointed, and they sometimes forget their judicial tem-
perament. Hopefully, that is something that all people can endeav-
or at all times to follow and at least show courtesy to lawyers and
to litigants that come before them.
You indicated on your questionnaire that you and other members
of your firm have represented many women, most of whom had
children in divorce actions, where there was physical abuse and/or
an unwillingness to support the family. As you know, the members
of the Judiciary Committee are very concerned with the ever-grow-
ing problem of violence against women.
In fact, I was proud to join Senators Biden and Hatch in intro-
ducing the 1993 Violence Against Women Act earlier this year. One
section of the bill addresses the problem of gender bias in the
courts, providing training for State and Federal judges on a num-
ber of issues, including sexual assault, domestic violence, and racial
and gender stereotyping. Based on your experience, do you think
such training is necessary, and how might it affect judicial deci-
sions?
Mr. BuRRAGE. Senator, it is a serious problem. Even in the small
town that I am from, you see it on a daily basis, and possibly train-
ing in these areas would be very helpful, because the problems that
are presented to these people are enormous.
Senator Heflin. Since graduating from law school, you have had
a variety of legal experience as a partner in a law firm, as general
counsel for David Gardner, the principal Chief of the Choctaw Na-
tion and the Choctaw Nation of Oklahoma, as a judge on a tem-
porary court of appeals to help alleviate a heavy docket, and since
1982 as a director of the First National Bank of Antlers, OK. How
has this experience prepared you to be a Federal district court
judge?
Mr. BuRRAGE. I believe the wider or the more variety of experi-
ence that a person has, it is helpful. I think serving on the courts
and writing the opinions has helped me. When you practice law in
a small town, you learn a lot about people, a lot of street sense.
Senator Heflin. Thank you, sir. We appreciate your answers to
questions.
Mr. BuRRAGE. Thank you, Senator.
Senator Heflin. We will now ask Ms. Gilmore if she will come
forward.
679
TESTIMONY OF VANESSA GILMORE, OF TEXAS, TO BE U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS
Senator Heflin. Ms. Gilmore, are there members of your family
that you would like to introduce, or friends that are here.
Ms. Gilmore. Yes, I would, Senator. Thank you for the oppor-
tunity.
As Congressman Brooks already mentioned, my mother, Laura
Gilmore is here; and my father, Clifton Gilmore; and my brother,
Dave Gilmore; sitting with me on the front row. Some of my other
friends are also here that I would like to introduce to the commit-
tee, with your permission. Senator.
Lisa Peoples is here from Washington, Sylvia Cirus has come
down today from New Jersey; Deidra Davis is here, an attorney
with the EEOC
Senator Heflin. If the people would stand up.
Ms. Gilmore. Ms. Davis in the back. Also, Myra Shiplett, a
friend of my mother, who is also with the U.S. courts and has
promised me any help that I might need if I am fortunate enough
to be confirmed. Mr. John Davidson and Mr. Al Tomlinson are also
here to support me this morning, Senator.
QUESTIONING BY SENATOR HEFLIN
Senator Heflin. Thank you. We are delighted to see them.
You have indicated on your questionnaire that throughout your
career you have participated in many pro bono activities. For exam-
ple, you are an active member of the Neighborhood Recovery Com-
munity Development Corp. board of directors. You also have won
many awards for your public service, including the YWCA award,
the Austin Metropolitan Business Resource Center Award, and the
Houston Business and Professional Men's Club Award.
In your view, how important is it for an attorney to perform pro
bono work in his or her community?
Ms. Gilmore. Senator, I think that it is critical for attorneys to
be involved in pro bono matters, from a legal point of view, as well
as from a civic point of view. It brings me tremendous satisfaction,
and I think that it can be a very big service to the community and
something that I strongly encourage among my peers and other at-
torneys in the Houston area.
Senator Heflin. Your legal experience has focused on private
practice, including civil litigation, on personal injury, elections,
business, and commercial matters. Most of your practice has been
in State court. However, if confirmed, you will be assuming the po-
sition of an impartial arbiter in the Federal district court. You will
face a docket that includes a heavy criminal caseload, as well as
constitutional, employment, and civil rights cases.
What steps do you plan to take to familiarize yourself with those
areas of law in which you may lack experience?
Ms. Gilmore. Senator, the Federal Judicial Center has already
been very helpful to me in suggesting a manner in which I might
begin a mentorship program in the U.S. District Court for the
Southern District of Texas, in Houston.
I have availed myself of those opportunities by soliciting the help
of sitting judges and asking them for their assistance in helping me
become familiar with areas that I have not previously practiced in.
680
Some of those judges have already begun to assist me in many
ways, alerting me to proceedings that are going on that I might
have an interest in viewing, and they have indicated a willingness
to assist me in any way that I might need in terms of getting up
to speed in the areas that I have not previously practiced in before.
Senator Heflin. In recent years, much has been said about Fed-
eral courts' increased caseload generally and the resulting problem
of docket backlog. This backlog has had an adverse effect on liti-
gants before the courts who have been forced to suffer, at least
some, if not significant delay, in the resolution of their claims. You
state in your questionnaire that the trial docket in Houston, Harris
County, TX, is extraordinarily crowded and it is not unusual for it
to take up to 3 to 4 years to get a trial on a simple matter.
If confirmed, what steps will you take to ensure that your docket
progresses at a pace that is reasonable and fair?
Ms. GiLMORE. One of the things that I have already looked into,
Mr. Chairman, is the possibility of adding some additional com-
puter support to the courts that would make me a lot more effi-
cient. I have already spoken with the clerk's office in Houston and
have requested the possibility of adding different computer-aided
support that I think could really add to the efficiency.
The court has been very amenable to it, has been very helpful
in helping me determine what steps we might take. I think that
is just one method that we can use to make ourselves more effi-
cient, something that I have utilized myself in my private practice
and has increased my efficiency tremendously, and I hope to be
able to take that experience, some of the experience that I have
had there with me, if I am fortunate enough to be confirmed and
go to the court.
There are many other things, an increased use of the Federal
magistrates in the Houston area, as well as an increased use of al-
ternative disputes resolution, all of which I hope to avail myself of
if I am confirmed.
Senator Heflin. What would you do when faced with a fifth cir-
cuit precedent which controls a matter before you, but with which
you personally disagree?
Ms. GiLMORE. Senator, I feel that I am bound to follow the prece-
dent of my circuit court.
Senator Heflin. The Judicial Conference has completed 2 years
of a 3-year experiment allowing the use of cameras in Federal
courts during civil trials. A restriction on that experiment is that
the media, when it is interested in televising a particular trial
must notify the presiding judge in advance, and the judge may
refuse a request at his or her discretion. Do you think that this ex-
periment will contribute significantly to the public's understanding
of how our Federal judicial system works? And what are your
thoughts on whether televising a trial may have a negative effect
on a defendant's right to a fair trial?
Ms. GiLMORE. I think that the ability of the press to cover court
proceedings can contribute to the understanding of the community
in terms of the way the court system works. I think that there is
a lot that is unknown and just not understood in terms of how the
court system works, and I think that could be very helpful in terms
1
681
of increasing the confidence of the community in the judiciary and
in the court system.
In terms of weighing and balancing the relative dangers of a per-
son receiving a fair trial because of media coverage, I think that
is something that the court needs to weigh and balance in every
individual situation. I think that there is a need and a desire to
have open courts and to allow the press coverage, and I think that
you have to weigh and balance that against the potential preju-
dicial effects on the defendant, particularly in cases where the jury
might be influenced to make a decision that they might not have
made because of the scrutiny or coverage of the press. I think it
is a weighing and balancing act, but I am certainly in favor of a
free press and in favor of any opportunity to help the community
understand more about the judicial system.
Senator Heflin. Thank you. I appreciate your testimony.
Ms. GiLMORE. Thank you, Senator.
Senator Heflin. Mr. Kern, if you could come forward.
TESTIMONY OF TERRY C. KERN, OF OKLAHOMA, TO BE U.S.
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OKLA-
HOMA
Senator Heflin. Are members of your family or friends here with
you that you would like to introduce?
Mr. Kern. Thank you, Mr. Chairman.
None of the members of my family were able to make the trip.
I have a daughter, Lauren, at Rice, who is flying home probably
as we speak; and I have a daughter, Susanne, who had a lot of ac-
tivities; and a son, Justin, who is likewise involved in a lot of
school activities at this time.
I would be remiss if I did not convey to you the regrets of my
wife, Charlene, who was a Hill staffer for a number of years after
college. She worked on both Senator Monroney's staff and Senator
Harris' staff, both from Oklahoma. I know that she would love to
have had the opportunity to return to the Hill for this occasion.
I have, however, adopted Molly Sheid Boren as my family for this
hearing. She has been a great friend of my children and my wife
and myself for a number of years, and she has agreed to stand in
as my family, but she did indicate it would only be on a tempo-
rarily basis, that she has other obligations.
QUESTIONING BY SENATOR HEFLIN
Senator Heflin. Well, we couldn't have a better one. Thank you.
I understand you were appointed by the Supreme Court of Okla-
homa in September 199 1 to serve as one of three judges on a tem-
porary panel of the court of appeals. Your particular panel was de-
ciding three cases for decision. How were you selected to serve on
the temporary panel, and did this experience play any part in your
decision to seek a Federal judgeship? And, third, what insights on
being a judge did you gain from this experience?
Mr. Kern. Senator, that appointment was made by the Chief
Justice of the Oklahoma Supreme Court, who I understand you
know. Justice Opala, and that was basically a situation where the
backlog got so great that they went around to members of the pro-
fession who had achieved some reputation and had the qualifica-
682
tions of a district judge and asked them to serve in that capacity,
and I was happy to do so.
The experience I think was very enlightening, in removing me
from the normal job of a trial lawyer, of being an advocate for a
client and being able to read the briefs and review the work that
both sides had done on the case, and to make an impartial decision.
Yes, I think that did. I had a longstanding interest in the Federal
judiciary, but I think that certainly helped with that interest and
helped me to understand some of the problems that you face when
you are the impartial judge.
Senator Heflin. Well, you are certainly right about Judge Opala.
I have known him a long time, and he is a remarkable individual
and does a great job as a member of that Supreme Court, and also
nationwide is recognized for his abilities in trying to bring about
a much more effective administration of justice.
For much of your career, you have practiced in the area of per-
sonal injury defense, product liability, business litigation, and cor-
porate law. How do you plan on making the transition from advo-
cate to impartial arbiter?
Mr. Kern. Senator, I think it is a matter of hard work and study
and using materials that are available to make that transition.
During my career, sometimes I view it as a curse, but often it was
a blessing. I had the ability to see both sides, both the one that I
was presenting and the one that the other side was presenting. I
was able to settle a lot of cases that way, instead of going to trial,
and I think I have some natural ability in that regard to view both
sides and to make the correct decision. The rest of that I think is
a matter of training, study and the hard work that comes with tak-
ing a position on the Federal bench.
Senator Heflin. Of course, you will be faced with a docket that
has a heavy criminal caseload, as well as constitutional, employ-
ment, and civil rights cases. How do you intend to bring yourself
up to speed in the areas of law in which you may lack familiarity
or experience?
Mr. Kern. Mr. Chairman, in my early years of practice I did
some criminal work and I enjoyed it very much. In fact, I am sorry
that over the years that I strayed away from that area.
I believe that the Federal Judicial Center is very helpful. In fact,
I have already received a rather large box of reading materials in
these areas. I have already started, in hopes of confirmation, some
study in this area to bring myself up to speed. As Vanessa Gilmore
indicated, I have also checked into the mentorship program, and
the judges in the Northern District of Oklahoma have indicated
every willingness to help me get up to speed in the areas that I
have not practiced in lately.
Senator Heflin. In August 1990, the Judiciary Committee
passed a resolution where it expressed the sense of the committee
that it was inappropriate for judicial nominees to be members of
clubs where business was conducted at those clubs invidiously dis-
criminated on the basis of race, sex, or religion in their member-
ship policies. In your committee questionnaire, you stated you be-
long to the Domick Hills Golf and Country Club. It is my under-
standing that the club currently has no African-American mem-
bers. Does the country club invidiously discriminate on the basis of
683
race, sex, or religion? Would you explain what the situation is per-
taining to that club?
Mr. Kern. Mr. Chairman, in my view that club does not discrimi-
nate in any way. There are other minority members of that club.
There are Asian -Americans, there are Hispanics, there are Native
Americans that belong to that club. There is a long waiting list. It
is not a very exclusive club.
I have taken steps throughout the time that I have been a mem-
ber of that club to make sure that there were no discriminatory
policies. In the early 1970's, I was asked, as a private attorney, to
review the bylaws of the club with an eye toward making some
changes with regard to matters that are not of any particular con-
sequence.
But in doing so, I found a provision which was frankly discrimi-
natory, and I immediately went to the chairman or the president
of the board and was able to get his permission to rewrite those
provisions, and they were placed on the ballot for the very next an-
nual meeting. Quite franldy, the members of that club apparently
had not read their bylaws in a very long time and were not even
aware that provision was there. But I was successful in getting
that removed.
I have made attempts, as I think my questionnaire indicates, to
recruit African-Americans, one individual on more than one occa-
sion. I have been on a committee that attempted to recruit another.
We have been unsuccessful, but we continue to try. So I think I
have a very good record in that regard, Mr. Chairman.
Senator Heflin. Thank you, Mr. Kern.
Mr. Kern. Thank you, Mr. Chairman.
Senator Heflin. We will now call Judge Kessler.
TESTIMONY OF GLADYS KESSLER, OF THE DISTRICT OF CO-
LUMBIA, TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF
COLUMBIA
Senator Heflin. Judge Kessler, are there members of your fam-
ily or friends here that you would like to introduce?
Judge Kessler. Good morning, Senator. Thank you very much
for chairing these hearings.
Yes, I would like to mention my husband again, of course, Arthur
Mackwell. I would like to introduce my very closest and oldest
friend, Prof. Florence Roisman, who is teaching at Georgetown Law
School now, and we have known each other since high school.
Senator Heflin. Please stand up. Thank you.
Judge Kessler. I am very pleased that my Chief Judge, Chief
Judge Eugene Hamilton, is here today. This is a particularly busy
time at our court, because we are doing court-wide training today
and tomorrow and Saturday. And our court executive Ulysses
Hammond is also present. A very close friend of mine named Lois
Schiffer is present. Two people who are indispensable to my life are
here, and they are my secretary, Ms. Shirley Clayborne, and my
current law clerk, Ms. Shurnae Prince.
Those are the people I would like to introduce.
Senator Heflin. Thank you.
684
We have heard from people in my State. Former Chief Justice
Tolbert speaks very highly of you and seems to know you quite
well.
Judge Kessler. We worked together on the Center for State
Courts. Of course, as you know, he was the chair of the State Jus-
tice Institute for a number of years, and I worked on a lot of
projects that were funded by them.
QUESTIONING BY SENATOR HEFLIN
Senator Heflin. Congress is contemplating legislation aimed at
reducing pervasive overcrowding in Federal courts, by allowing
Federal judges to assign some of their smaller cases to court-ap-
pointed arbitrators. Many judges and lawyers have expressed con-
cern about this approach, saying that it infringes upon the right of
citizens for a jury trial. Given your experience as an active litiga-
tor, especially in light of your background in public interest law, do
you have any thoughts on this proposal?
Judge Kessler. As you know, Senator, at Superior Court we
have a very sophisticated program that now involves both vol-
untary and mandatory arbitration, so we have had experience with
both options, as it were.
Under both of those options, we have always allowed litigants, if
they were unhappy with the results of the arbitration, to have a
de novo right to a trial in front of a regular trial judge. Our arbi-
tration program has been very successful. I think one of the rea-
sons it has been successful is because litigants know that even if
they go before an arbitrator, they are never foreclosed from going
back to court to getting a full trial.
I think that is extremely important, whether it be the Federal
system or the State court system, that litigants understand that
they always have a right to a trial and they are not going to have
the courthouse door slammed in their faces. At the same time, I
think everybody is aware of the incredible backlog in the Federal
and the State court system. Arbitration can be used very effec-
tively, it should be encouraged, and we should be training people
to be competent and qualified arbitrators.
Senator Heflin. In the old mandatory court annexed arbitration
program, there is a provision to the effect that if the judgment ob-
tained by a jury trial on a de novo appeal, that the judgment is less
than what the plaintiff-appellee received through arbitration, then
that they have to pay the cost of arbitration. How do you approach
this? That is one of the impediments that some people feel is a re-
straint on the constitutional guarantee of a right of trial by jury.
Judge Kessler. Our system works in the following manner, and
we have changed it a little bit, and I think that we have improved
it. Originally, when it was as a purely voluntary system of arbitra-
tion, we required that if you did not improve your position at trial
by 10 percent or more, then that party who did not improve their
position was responsible for court costs, witness fees and attorneys
fees.
When we changed the program and made it a mandatory one, we
concluded that the imposition of attorneys fees was too heavy a
burden on litigants, and so we changed the program in the follow-
ing respect. If you do not improve your position by 10 percent or
685
more, then you are required only to bear the costs of witness fees
and court costs, but you are not required to pay counsel fees.
Senator Heflin. What about the cost of arbitration? Who pays
the cost of arbitration under yours?
Judge Kessler. Under our system, the court does bear that cost
and we pay our arbitrators, I believe it is $150 an arbitration.
Senator Heflin. Since 1977, you have sat on the Superior Court
of the District of Columbia. What do you see as the primary dif-
ferences between sitting on this court and sitting on the bench at
the Federal level? And what steps do you plan to take to familiar-
ize yourself with those areas of the law in which you may lack ex-
perience?
Judge Kessler. Obviously, the subject matter is different. There
are going to be areas that will be new to me, such as bankruptcy
law and antitrust. There will be areas that will be somewhat dif-
ferent, but certainly comfortably familiar, namely, much of the
criminal area is very similar in Federal court to the kinds of drug
cases, for example, that we are trying in superior court.
Many of the civil cases, the diversity cases will be very similar,
although, again, there will be all sorts of administrative law cases
that will be very different and very challenging, in my view.
What I have been doing in the past year since we first filed our
applications, I have been reading all the appellate opinions out of
my Federal circuit, just so that I will have a pretty good idea of
what direction the law was moving in in my own circuit, and what
the significant differences were between my circuit's view of certain
issues, such as fourth amendment questions, and my own court of
appeals.
I, too, have received that huge box of materials from the Federal
Judicial Center. I am actually due today at a seminar at the Uni-
versity of Pennsylvania on multidistrict complex litigation in the
Federal courts. I expect to be doing as much reading as I humanly
can in the next couple of months, if I am fortunate enough to be
confirmed.
Senator Heflin. Several of your publications address issues sur-
rounding the role of women and minorities among the Federal judi-
ciary. In 1983, you wrote an article entitled "Affirmative Action
Can Mean the Best Person for the Job," in which you argue that
judges must in the future ensure that women, Hispanics, blacks,
Asian-Americans, and a whole host of others from nontraditional
legal practices are given the opportunity to ascend to the bench. Do
you still believe that it is important to have a Federal judiciary
that is diverse, and, if so, why?
Judge Kessler. I certainly still believe it. My reasons are the
same. I think that it is vitally important to have a Federal system
that uses and encompasses the incredible strength and diversity of
the many wonderful lawyers practicing law in this country. I think
the six nominees who have been presented to you today are a won-
derful example of that philosophy.
Senator Heflin. Do you believe that sufficient progress has been
made to diversify the Federal judiciary?
Judge Kessler. I think a lot of progress is being made right now.
Senator Heflin. Not enough.
Thank you. We appreciate your testimony.
686
Judge Kessler. Thank you, Senator.
Senator Heflin. Judge Sullivan, if you will please come forward.
TESTIMONY OF EMMET SULLIVAN, OF THE DISTRICT OF CO-
LUMBIA, TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF
COLUMBIA
Senator Heflin. Are there members of your family or friends
that you would like to introduce?
Judge Sullivan. Yes, Senator. My wife and father and my son,
Eric, were previously introduced. I would at this time like to also
recognize my older son, Emmet A. Sullivan II, who is not able to
be present this morning. I would like to recognize my sisters, Patri-
cia Norris and Judy Smiley, and their husbands Jeff and Marchel.
Also present with me today is my colleague the Honorable
Annice Wagner, associate judge of the District of Columbia Court
of Appeals. Once again, I recognize the Honorable Eugene Hamil-
ton, the chief judge of the superior court; and a friend of longstand-
ing, a lifelong friend of mine and former business associate, who is
also a judge on the superior court, Wendell P. Garner, Jr., is
present.
My staff is present, Geraldine Kyler, my secretary of longstand-
ing; my law clerks, Cari Dawson and Melody Webb, are present.
My sister-in-law, Rosalind Harmond, who is a Hill staffer, is
present. I would like to recognize also Ulysses Hammond, the court
executive for the District of Columbia courts, and a lifelong friend,
Mrs. Marshall Whitley.
Thank you.
QUESTIONING BY SENATOR HEFLIN
Senator Heflin. Thank you.
Since their inception, the Federal Sentencing Guidelines have
been the subject of debate. In fact, one district court judge resigned
because, according to press reports, he felt that the mandatory
guidelines were too harsh and too rigid. As a Federal judge, what
will you do if you are faced with a situation where the sentencing
guidelines called for you to impose a sentence that you felt was too
harsh?
Judge Sullivan. Assuming the constitutionality of the guide-
lines, I am duty-bound to apply them, regardless of my personal
opinions.
Senator Heflin. You served as a judge of the District of Colum-
bia Superior Court and as a judge on the District of Columbia
Court of Appeals, and in many respects you have performed duties
similar to those of a Federal district court judge. Given your back-
ground and prior experience, please speak about the role and sig-
nificance of judicial temperament, and indicate what elements of
this temperament you consider the most important.
Judge Sullivan. Senator, I have but one rule of thumb. I do
treat all litigants who appear before me in the manner in which
I would be expected to be treated were I to appear in any court in
this country.
Senator Heflin. Some people have suggested that settling appro-
priate cases early would relieve some of the court's backlog. While
that may be true, some litigants would prefer their day in court to
687
even a favorable settlement. As a trial judge, what role, if any, do
you intend to play in the settlement process?
Judge Sullivan. I think the settlement efforts by a trial judge
are very important. All cases cannot be tried by a judge. It is very
important to embark upon settlement opportunities, especially
early on litigation. It is more fruitful that efforts to settle the case
will be successful early on, so I think it is very important that
judges explore any and all types of settlement techniques.
Senator Heflin. What factors would you consider to determine
whether a case was appropriate for settlement or not?
Judge Sullivan. Senator, when I was as trial judge, I was the
presiding judge of both the tax division and probate division, and
both of those divisions had calendars that had hundreds of cases
on them. There were too many cases for two judges assigned to
those divisions to try. So we had to make a decision early on as
to what to do with them, and the decision was to place all of those
cases into mandatory settlement at the earliest opportunity.
There was a lot of resistance to that suggestion, because attor-
neys believe that tax cases and probate cases did not lend them-
selves well to settlement efforts. But after 6 months of intense set-
tlement efforts and in an effort to reduce the staggering caseloads,
everyone was applauding the efforts to put those cases into settle-
ment. So there is no type of case that is not worthy of an attempt
at settlement, and we demonstrated that in superior court with the
tax and probate cases.
Senator Heflin. That is a very excellent answer. I think you are
right there. The problem is that sometimes the lawyers or the liti-
gants do not understand their risk.
Judge Sullivan. That is correct.
Senator Heflin. Therefore, if they had a better understanding
and a better evaluation of the case, I think that settlements could
be more readily reached in a lot more cases.
Thank you. I appreciate your testimony.
Judge Sullivan. Thank you.
Senator Heflin. I believe that concludes the hearing on every-
one. We would expect the process to move rapidly. None of you
seem to have any problems, and so I congratulate you and hope
that your confirmation process moves very rapidly and that you
will be confirmed in the near future.
Thank you.
The committee is adjourned.
[Whereupon, at 11:46 a.m., the committee was adjourned.]
[Submissions for the record follow:]
688
SUBMISSIONS FOR THE RECORD
Z. BZOORXPXZCAL ZK70KMXTZON (PUBLIC)
1. Full nam* (inolude any former naaies u«ed.)
Theodore Alexander McKee
2. AddrvBBi Lift current place of resldenoe and office
addrsaa (ee) .
Work: Room 429 City Hall, Philadelphia, Pa. 19107
Heme: 519 Pelham Read, Philadelphia, Pa. 19119
3. Date and place of birth.
Rochester, New York, June 5, 1947
4. Marital Statua (inolude sialden nane of wife, or husband's
name). List spouae's occupation, employer's name and businass
address (es) .
Married for 23 years to (nee) Ana Pujola-McKee, a self-employed
physician with offices at:
6000 West Oxford St., Philadelphia, Pa. 19151
and
Presbyterian Kedical Center, Medical Office Suilding, Suite 320, 51
North 39ch Street, Philadelphia, Pa. 19104
5. Education! List each college and law school you have attended,
including datea of attand&nos, degrees received, and dates degrees
were granted.
State Univereity of New York
Cortland, New York
September, '.965 to May, 1969
Bachelor of Arts 1969
Syracuse University College of Law
September, 1S72 to May, 1975
Juris Doctorate 1975
6. EmploynKnt Reeordi List (by year) all business or profaaslonal
corporations, companieB, flnns, or other enterprises, partnerships,
Inetitutions and organizations, Bcnprofit or otherwise, including
firms with which you were oonneoted as an officer, director,
partner, proprietor, or employee since graduation from college.
Jan'.:arv. 1984 to Present - Judge of the Court of Common Pleas for
the Firet Judicial District of Pennsylvania.
689
^Tanuarv, 1930 to 1991 - Lacturer In Law at Rutgers Univeraity
College of Law. I taught a Spring eemeater course in trial advocacy
to third-year law atudenta.
t^arch. 1983 to December. 1983 - General Counaal to the Philadelphia
Parking Authority.
rphi-^iary. 1980 to March. 19B3 - Deputy City Solicitor with Law
Department of Philadelphia.
March. 1977 to February. 1980 - Aseistant United States Attorney
for Eastern District of Pennsylvania.
September. 1975 to March. 1977 - Associate with firm of Wolf,
Block, Schorr & Soiis-Cohen, Philadelphia, Pa.
1969 to 1972 - Director of Minority Recruitment and Admiesions for
State University of New York at Binghamton (Harpur College) .
iseg to present - General partner - Pujkee Associates. This is a
family limited partnership which consiste of my wife, myself, and
my r,other-in-law. The partnership owns a four unit residential
building in Philadelphia.
7. Military Servicet Have you bad any military B»rvic9? if bo, giva
particulara, including tha dates , branoh of ■•rvice, rank or rata,
serial nxunbar and type of discharge received.
No.
8. ponora and Awards > List any soholarshipa, fellowships, honorary
degrees, and honorary society memberships that you believe would be
of interest to tha Committee.
I graduated magna cum laude from law school. In addition, I was
a member cf the Justinian Society which is the law school's honor
society, and was awarded Order of the Coif. I also received book
awards tor receiving the highest grade in each of the following
subjects in law school:
1 .Contracts
2. Law and Education (outstanding paper)
3. Conflict of Laws (highest grade, no av;ard given)
9. Bar AasociationH i List all bar associations, legal or judicial-
related committeeB or oonfaranoas of which you are or have bean a
member and give the titles and dates of any offices which you have
held in auch groups.
Anierican Bar Association (1975 to 77, 1990 to 1993)
690
National Bar Association (Judicial Conference) (1992 to present)
Barristers' Association of Philadelphia (1975 to present)
Pennsylvania Bar Association (1964 to present)
Philadelphia Bar Association (1975 to 77; 1984 to present)
Temple Inn of Court (1993 to present) .
10. Other Meabercblps t Liat all organlcatlons to %«hich you beloog
that are active in lobbying before publlo bodies. Please list all
other organizations to whloh you belong.
ether than bar associations, I do not belong to any organizations
that are active in lobbying efforts. The other organizations to
which Z now belong are as follows:
1. Crirne Prevention Association (Board of Directors).
2. Diagnostic and Rehabilitation Center of Philadelphia. (Board of
Directors) .
3. New Directions for Women, Inc. (Board of Directors) (formerly
)cnown as Program for Female Offenders of the Delaware Valley) .
4. World Affairs Council.
5. Urban League of Philadelphia.
11. Court Admission; List all courts in which you have been
admitted to praotioe, with dates of admisBion and lapses if any
such memberships lapsed. Please explain the reason for any lapse of
jsembersbip. Oive the ease information for administrative bodies
which require special admission to practice.
COURT; ADMISSION DATE:
1. U.S. Third Circuit Courc of Appeals. approxir.ately 9/77
2. United States Discrlct Court for
the Eastern District of Pennsylvania. approximately 9/77
3. Supreme Court of Pennsylvania. approximately 11/75
la.Publiahed WritlnCTS! List the titles, publlshera, and dates of
booica, articles, reports, or other publiahed mat«rial you have
wrlttan or aditad. Please supply one copy of all publiahed material
not readily available to the Coinr.lttee. Also, pleas* supply a copy
691
of all ■p««oh«B by you od lasu«a involving oonatitutional Iftw or
legal policy. Z£ thara wara preaa raporta about tha apaach, and
they ara raadily available to you, plaaaa supply tham.
Nona.
13. Haalthi What ia tha praaant atata of your health? Liat tha data
of your laat phyaieal examination?
My health is excellent. My last full physical examination was in
February of 1991, however, my wife (an internist) routinely checks
n-.y blood pressure, and cholesterol levels.
14. Judicial Office; State (chronologically) any judicial offices
you have held, whether such position waa elected or appointed, and
a deaeription of the jurisdiction of each such court.
The only judicial office which I have ever held ia the one I
currently hold. I was elected to the Court of Common rleae for the
First Judicial District of Pennsylvania in November of 1983. My
duties on that Court have been as follows.-
I was initially assigned to the Felony Waiver Program (January,
1984 to December, 1985) where I presided over bench trials of
felonies.
From January, 1986 to December 1987, I was assigned to the Major
Felony Program. This includes all felonies except homicides, and I
presided ever jury trials as well as waiver trials.
From January, 1988, to September 1992 I was assigned to the
Homicide Program where I presided over jury and waiver trials of
persons charged with varying degrees of homicide. Approximately 15%
of these involved a death qualified jury.
In September 1992 I began serving in the Orphans' Court
division where I now preside over matters involving trusts, wills,
and the estates and affairs of minors, incompetents, and nonprofit,
charitable organizations. By statute, all trials in this division
are bench trials with two very limited exceptions In addition, the
Court sits en banc as an appellate court once each month to hear
appeals from hearing judges within the division. In this sense, the
Court functions as an appellate court., and I have written opinions
for the majority, dissenting opinions, and concurring opinions for
the Court.
15. Citations; If you are or have been a judge, provide i (1)
citationa for the ten laost aiqnifieant opinions you have written;
(2) a Bhort auinmary of and citatiouB for all appellate opinione
where your deciaiona were revaraad or where your judgment waa
affirmed with significant critioiam of your substantive or
692
procsdural ruling*; and (3) oltatlonw for ■Icmifioant opipjoni on
federal or ataf conetltutlonal i*tu«B. together with the citetlon
to appellate court rulings on suoh opinions. If any of the opinions
listed were not officially reported, please provide copies of the
opinions .
(1). The names and citations of these cases are as follows:
1. Commonwealth v. Mareelette Miller. February
Term, 1991, Nos. 1690-1697, aff'd 526 ?a.
Super. 410, 627 A. 2d 741 (1993).
2. Commonwgalth V. Robert Madden. June Term,
1985 No. 2563, my Opinion rev'd at 523 Pa.
420, 567 A. 2d 1041 (1990), Superior Ct.
reversed at No. 27 E.D. Pa. Supreme Court
Appeal Doc)cet 1989 in judgment filed January
1," 1990.
3. Commonwealth v. Anthonv White. April Term,
1986 No. 659, aff'd 371 Pa. Super. 578, 538 A.
2d. 887 (1988) .
4. Estate of George Earle. Sr. . O.C.No. 332 of
1908, Amended Ad-^udicaticn filed April 1,
1993.
5. Commonwealth v. Frederick Leach. Kay Term,
1986, Nob. 2494 - 2496, aff'd at 1983
Philadelphia 1987, filed March 17, 1589 (slip
opinion) .
6. Estate of Philic V. Marrone. O.C. No 313 of
1990, Adjudication filed January 17, 1992.
7. Estate of William G. Nicholas. O.C. No.
3782 of 1956, Majority Opinion filed April 21,
1992.
e. Estate of Samuel W. Salue. O.C. No. 1190 of
1947, Majority Opinion filed, aff'd 617 A. 2d
737 (Pa. Super. 1992) .
9. Trust B of Jonathon Holdeen O.C. Nob. 3321
of 1971, 2249 of 1971, and 225C of 1971, filed
March 29, 1993.
10. Comironwealth v. Manuel Ortiz Vega.
Noveirl^er Term 1987, Noe. 2647 to 2648. filed
693
Sept 6, 1969, aff'd 576 A. 2d 1140 (table).
(2) . I have done a WeatLaw aaarch, and searched my files and
recollection for those cases where I have been reversed or my
reasoning criticized. I have found the following cases:
1. CcTwronwealth v. Cleveland Amos, a/k/a/
AmoB Cleveland. 364 Fa. Super. 402, 528 A. 2d
219 (1966) .
The issue was the appropriate sentence
which should have been imposed upon & 50 year
old chronic heroin addict who was convicted of
a street sale of heroin, I sentenced him
outside of the guidelines because of his age,
personal circumstances, and the fact that I
thought he could beat be rehabilitated through
treatment of his Icngatanding addiction, and
that such treatment would not pose a threat to
the community as he was not a violent
offender. The Superior Court agreed that there
were mitigating circumstances in the case, but
determined that the circumstances allowed cnly
for a downward departure to within the
mitigated range of the guidelines. I had
departed below the guidelines.
2. Conmonwealth v. Wlndell. 365 Pa. Super.
392, 529 A. 2d 1115 (1987) .
1 convicted the defendant and a
codefendant of robbery, theft and possession
of stolen property following a bench trial in
which the Commonwealth established that the
defendants were in possession of a stolen
change purse. The owner of the purse
testified that it was stolen from her while
she was riding on a bus near Sears, and
additional evidence established that the
defendant had been on the bus at the same time
as the complainant . It had been stolen a short
tim.e before the bus passed Sears where the
defendant had gotten off the bus. The victim
testified that she felt herself being brushed
or jostled while on the bus, and' that she was
jostled particularly hard when the bus stopped
near Sears. She turned and noticed a tall
youth standing near her, but could not
694
identify that parson as tha defendant.
Although the evidence clearly supported a
conviction for poBsession of stolen property,
there was a real issue as to the sufficiency
of the evidence to prove that the defendant
was the one who removed the card from the
victim's puree thereby establishing robbery. I
thought that the timing was such as to
establish that tha defendant was the robber.
The Superior Court disagreed.
3. Commonwealth v. Waters. 361 Pa. Super. 154,
522 A. 2d 60 (1967) .
Waters was convicted of dr^unk driving.
The issue at sentencing was the legislative
intent of two apparently conflicting statutes.
One appeared to allow Accelerated
Rehabilitation Diversion (ARE? to persons
afflicted with an addiction, specifically
including alcohol. The other statute was the
mandatory sentencing scheme for persons
convicted of driving under the influence. The
issue was whether the legislature intended to
preclude such persons from. ARD if they could
establish their alcoholieir, or whether the
seemingly broad language of the ARD statute
included persons convicted of drunk driving if
they were addicted to alcohol. I determined
that the legislative intent was the latter.
The Superior Court disagreed.
4. Commonwealth v. Fluellen 345 Pa. Super 167,
497 A. 2d 1357 (1985)
The defendant was arrested for the
possession and sale of approximately $120.00
worth of heroin. I convicted him of felony
drug offenses following his waiver of a jury
trial. The defendant had been a heroin addict
for over 14 years. He had also developed an
addiction to cocaine and, as a result of his
polysubstance dependence, he had a significant
criminal record. However, he did not have a
history of violent offenses. He had also
developed serious medical complications
because of the numerous intravenous injections
he had given himself.
695
Noting that hi» prior record coneisted
solely of drug offense*, and his long history
of drug addiction, I deviated from the
sentencing guidelines and sentenced him to a
period of incarceration of ^ to 23 months and
ordered that he undergo inpatient treatment.
The Superior Court felt that I had placed
too much emphasis on the lack of significant
In patient treatment which the defendant could
fet while incarcerated, and remanded the case
or resentencing.
5. Estate of Marparet Sevier Moran. O.C. NO.
of 1990, filed June 30, 1992, (I wrote a
dissenting opinion); majority opinion aff'd at
Appeal of Ganor.. 428 Pa. Super 349, 631 A. 2d
136 (1993) .
The issue was the authority of a hearing
judge to terminate a testamentary trust
pursuant to a family settlement agreement
which was entered into in order to settle
litigation surrounding the will which
established the trust. The hearing judge
terminated the trust pursuant to the agreement
and a majority of the Orphans' Court agreed. I
tn^ote a diseenc in which I reasoned that the
authority relied upon by the hearing judge
concerned inter vivoe trusts where all
remaindermen joined in the agreement. X
reasoned that since the settlor can not
consent to terminating a tesLsmentary trust
(obviously; the settlor was dead) , the
situation was similar to case law where the
settlor was suffering from an incapacity and
court* ruled that it «ras an abu«« of
discretion to terminata the trust. Ny
reasonino was rootad primarily in tho deairo
to uphold the property intereet of the
deceased settler and insure that his property
was disposed of in a manner tihich he had
dictated m his will.
The Superior court sgreed with the
aajcrlty and relied only 1900 an eicami nation
of the Isr^guage of the truet inatrumeAt,
determined that terminating the trust %«ould
not frustrate ths eettlor'a purpose* end
\qpheld the authority of the hearing judge to
terminate the trust.
696
(() . Cowmonwaalth v. Richard L. Davla. April
Term 19S6, Nos. 1244 to 1247.
I inherited this case front another judge
who had heard the trial without a jury and
convicted the defendant of the burglary of a
carpenter supply store. That judge was no
longer on the bench, and it was reassigned to
me. The evidence was that police observed the
defendant and his cousin parked near a
warehouse at 2: CO ant and observed them as they
made several trips from their station wagon to
the back door of the warehouse. The police
then heard a banging and went to the rear of
the warehouse where they caught the defendant
as he was attempting to break into the
building with a sledge hammer. He was arrested
along with his cousin and in the station wagon
they had been going to, the police found
nurrerous boxes of building materials that were
unopened and that bore the name Carpenter
Supply Store. That store was three blocks away
froTi the warehouse, and the police took the
defendant and his cousin there while they
inspected that building.
Upon their arrival at the building, they
found a hole had been punched in the roof and
the inside of the building had been ransacked.
The owner was called and stated that he had
secured the building about 5:00 the preceding
afternoon. Thus between then and 2:00 am it
had been burglarized.
I ruled that the defendant's conviction
could not stand as the circumstances did not
establish that the defendant had burglarized
the Carpenter Supply Store. I felt
particularly sure of this since there was no
conspiracy charge, and the car that the stolen
materials were found in belonged not to the
defendant, but to his cousin. The Superior
Court reversed my granting the defendant a new
trial and determined that the evidence was
sufficient to support a conviction for
burglary.
(S) Having been a state court judge for all of my
judicial career, it has been rare that I have ruled upon
federal constitutional issues, and when those issues have
been raised, they are always raised in conjunction with
697
concomicant provlaion* of th« Pannaylvanla conatltutlon.
However, I would eubwic the following •• exewplee of euch
rullngt:
19S1, Noa. 1690-1697, aff'd 526 Pa. Super. 410, €27 A. 2d
741 (1993) .
a. r^^'^">'^«^^'^ ^- Manuel on it VM«' "^^•"^Tj*"l^;*3:
Kos. 2647 to 2«4«. filed Sept 6, 1989, aff'd 576 A. 2d
1140 (1990) (Table).
H. >tAlifl Cffiee! State (ehronologleally) any public offloea you
have held, other tbaa judicial oftieea. laeluding the teraa of
aervlce and whether aueh poaitioaa were elected or appointed. State
(ehroROlogleelly) any unaucoeaaful oandidaciea for elective public
effioe.
The only public office which I have ever held la my current
judicial office.
17. L*a«l Careen
a. Deacrlbe ehroaologieally your law praotlee and
experieaoe after graduation frea law achool
including;
1. whether you aerved as elerk to a judge,
and if ee, the nana of the judge, the
court, and the data* of the period you were
e elerk I
X have r.*yr9X aerved aa clerk to a judge.
2. whether you practiced alone« and If ao,
the addreaaea and dateai
1 have never been a sole practitioner.
3. the datea, nanaa and addreaaee of law
f iraa or of f icea, eoanpaniea or governnental
agenclea with which you have been
connected, and the nature of your
connection with eaehi
Y»rrh 1^83 to nmr-mmV^^T . 1983
Philadelphia Parking Authority.
General Counael
2 Penn Center,
10
698
Phlladalphl* Pa. If 107
p^hrtiarv. laao to Mareh. 19^^
tew Dcpartasat «t th« City of Fhll*d«lphi».
Deputy City Solicitor
Law Dopartwant
City of Philadalphia
llth Floor ARA Building
Philadelphia, Pa. 19107
itorrh H77 to February. 198Q
V.f . Departaent of Juatice-
Aeaiatant Oaited Statea Attorney for the
laatem Oiatriet of Penney Ivania.
U.S. Court houae
€th k Market Streete
Philadelphia, Pa. 19106
fiApf#ii!b«r. 1^1^ tr, M«rffh 1977
Wolf, Block, Schorr & Sclie-Cohen.
Aeaociate aaaigned to litigation departaent
12ch Floor Packard Building
Philadelphia, Pa. 19102
Jiir.i»ry. 1980 to 1991
Lecturer in Law at Rutgera onivereity
College of tew.
Camden, Kew Jeraey 0B102
b. 1. What hae been the general eheraeter of your
lew practice, dividing it into periode with datee
if ite eheragter hae changed over the yearaT
a) .March, 1983 to Decernber, 1983
Philadelphia Parking Authority. (General
C>:uneel)
1 went to the Parking Authority because of the
expertise which I had developed as a Deputy City
Solicitor in charge of the Enforcement Division.
While I wae at the Authority, it was primarily
concerned with moving from an agency that dealt
Bxcluaively with off-street parking, to one that
would have primary responalbllity for enforcement
of on-etreet parking. In addition to the varioue
ordinances and amendmente to enabling legislation
that I was involved with, I was also concerned with
attempting to standardize and professionalite
11
699
bidding proceduraa, and contracts. Tha Authority' a
ahift to on-atreat parking reqairad a large
procurement of vehicles and equipment needed for
parking enforcement. A aubatantial part of my time
at the Authority waa, therefore, devoted to
insuring the faimeas and legality of the
procurement proceas.
b) . February, 1980 to March, 1903
Deputy City Solicitor
Law D«partT.ant of the City of Philadelphia,
Aa Deputy in chuirge of the Enforcement
Division, I coordinated and adminlaterad the
Revenue Utiit and Code Enforcement Unit of the
City a Law Department. Together, those two unite
compriaed the Enforcement Diviaion, which waa then
the second largest division in the law department.
The Revenue Unit was reaponaibla for representing
the Department of Revenue before administrative
boards and in court, and was responsible for the
collection and enforcement of municipal taxes,
fines and claims. X was also responsible for
providing legal counsel to the Revenue
Commissioner.
The Code Enforcement Unit was charged with
enforcing various City codes including the Housing,
Building and Health Codea. My primary
responsibility waa the development and
administration of a program to collect municipal
claims and finea, and to insure better enforcement
of various City codes and ordinancea.
c) . March, 1977 to February, 1980
Assistant Uniced States Attorney for ths
Eastern District of Pennsylvania.
While at the U.S. Attorney's Office, I was
aaalgned firat to the Grsneral Crimes Unit, then to
Narcotics and Firearms and finally to the Political
Corruption Unit. I prepared cases for indictment
and trial and followed those cases through the
appellate procedure up to, but not including, the
U.S. Supreme Court.
In addition, after my first seven months at the
office, 1 became generally responsible for
coordinating and investigating allegatione of
police brutality before a Special Grand Jury
established to Investigate these matters. In this
capacity 1 had the opportunity to represent the
12
700
United Statca Civil Right! Commitflion when it
attempted to eubpoena filee of the police
department a* part of it* overall inquiry into
alleged police abuse nationally.
d) . September, 1975 to March, 1977
Aaaociate with firm of Wolf, Block. Schorr 6
Sol is -Cohen.
After doing a mandatory rotation through three
of the firm's departments, Z was granted my choice
of assignments and was permanently assigned to the
litigation department. My most interesting
experience at the firm, however was not in
litigation. One of the firm's senior partners
represented an individual who wanted to run for the
United States Senate. The Federal Election Campaign
Financing Act had just been passed and no one at
the firm was familiar with it or fully understood
its ramifications. I had done seme worJc for the
partner in charge of the client, and he asked me to
begin advising the client on the provisions of the
new law. I eventually became the firm's expert on
the law, had several meetings with the candidate's
staff, and attended at least one session of the
Federal Election Campaign Commissicn on his behalf.
2. Desoriba your typical fomer clients, and
naatioa the areas, if any, ia %«hieh you
speclaliaed.
I had no "typical" client with the exception of my
stay at Wclf Slock, where nearly all of the clients
whose matters I was assigned to were highly
successful and sophisticated business persons.
e. 1. Did you appear in court regularly, oceaslenallr
or not at all? If the frequency cf your appearaaoes in
court varied, desoribe each such variance, giving dates.
While at Wclf Block (1975 to 1977) I appeared in court
rarely. At the United States Attorney's office (1977 to
1980) I appeared in court frequently. Upon going to the
City Solicitor's office (1980 to 1963) I again appeared
in court only rarely, and at the Parking Authority (1963)
I did not appear in court at all .
2. What percentage of these appearances was in:
(a) Federal courts.
13
701
Ov«r«ll, •pproxim«t»ly 75% of all of my court apptaranct*
bttfor« coming on th« b*nch were in fedaral court*.
(b) ftat* oourta of raoerd.
Ovarall, approxlmataly 25% of all of my court apptarancaa
bafora coning on the bancb wera in atata courta of
racord.
(e) Otbar oourta.
1 did not appaar in othar courta at all aa pare of my
legal practice.
3. Mhat paroantaga of your litigation waai
(a). Civil.
Approximately 25%.
(b). Criainal.
Approximately 7S%.
4. ftate the nuabor of caaaa in oourta of racord you
triad to vardiot or judgaant (rather than aettled) .
iBdictlng whether you were aole eounaal, chief counael,
or aaaeoiate eouaael.
I tried approximately 15 caaea to verdict. All of these
were in federal court, and 1 was the aole counsel on all
except for one where 1 wae aaaociate counael to the lead
proeecutor .
5. What percentage of theae triala waai
(a) juryi
Approximately 95%
(b) Boa-jury.
^^proximately 5%
It. Lltl9atiQni Deecribe the ten aoat aignif leant litigated Mtkera
which you peraonally handled. Give the citationa, if the caaaa ware
reported, and the dcoket nuaJaer and date if unreported. Oive a capaule
auntary of the aubatance of each eaae. Identify the party or partlaa
wbo« you repreaanted; deacrlbe in detail the nature of your
participation In the litigation and the final dlapoaltion of the caaa.
Alao atate aa to each eaaai
(a) the date of repreaentatloni
l«r
702
(b) th* nan* of th« eourt and th« nan* of th* judg* or
judges b*for« wtaaa th« o*i« waa lltlgatad; and
(e) tha individual nama, addraaa, and talapbena nunbara of
eo-oounaal and ot priooipal counaal tor aacb of tba othar
partiaa.
i. United star.ea v. vlgnsla. before Chief Judge Lord, United Scates
District Courc for che Eaacarn District of Pennsylvania, Crim No. 7S-
242, «64 F. Supp. 1C31, a££'d 6C5 P. 2d 1199 (1979). The date o£ the
trial waa October 31, 1978 to November 4, 1978. Sentencing was January
12, 1979.
X co-prosecuted the case for the united States.
I,ead counsel for the prosecution whom I assisted was
Alan M. Lieberman, Eaq.
current addreast Schnader, Harrison, Segal fc Lewis
16C0 Market Street, Suite 3600
Philadelphia, Pa. 19103
21S 751-2010
Opposing counsel was Thomas A. Bergstrom, Esq.
151S Market Street, Suite 520.
Philadelphia, Pa. 19102
215 569-2444
Alan Lieberman and I indicted and tried Louis Vignola who was then
President Judge of che Philadelphia Traffic Court. Alan left the office
before the matter was concluded and I therefore concluded the matter on
my own. The matter was concluded when the Third Circuit Court of Appeals
affirred the defendant's conviction under the RICO statute. I had the
opportunity to argue the Government's case to the Third Circuit. The
main issue on appeal was the applicability of the RICO statute to a
governirental agency like Traffic Court. At the time there was a split of
authority aa to whether the "enterpriae" apecified in the statute
referred only to an enterpriae of organized crime. It was argued that
the statute's intent waa to prosecute organized crime, and that it
•hould not be extended to legitimate enterprlaes, and especially not to
units of government. The issue haa since been settled in favor of the
position which I argued. That position allowa for an expansive reading
of the term •enterprise", and does not limit the application of the
statute to organized crime. The case was also significant as it ended
what had been a longstanding pattern of official corruption inside the
Philadelphia Traffic Court.
2. United States Civil Rights Commission v. CKeill. before Judge E. Mac
Troutiran, United States Diatrict Court for the Eastern District of
Penneylvania. No. Mlec. 79-90, 81 F.R.D. 664 (1979). The hearing on the
United States' subpoena duces tecum waa February 2, 1979.
Opposing counseli was Ralph J. Teti, Eaq. who was then a Depjty City
I
IS
703
Solicitor,
hia current addraas ie:
Nllllg, Nilllama k Oavidaon
1845 Walnut Street, 24th Floor
Philadelphia, Pa. 19103
215 656-3620
While I waa an Aaaiatant United Statea Attorney, X was aaked to
coordinate the apecial grand jury which had been empaneled to
investigate allegationa of police abuse on the part of the Philadelphia
Police Department. The work of the grand jury coincided with a national
inquiry intc police abuse which was being undertaken by the United
Scaces Civil Rights Commission. That Commission subpoenaed various
Philadelphia police pereonnel files as part of its inquiry. The
ConjnlBsion's subpoena was resisted by police Chief O'Neill, and then
Mayor Frank Riixo, and 2 was able to successfully litigate the issue of
the Commission's right to access those files. The ease was significant
because it allowed the investigation of the Commission to proceed, and
it also helped to reaffirm the principal that the records that the
CoTTunleslon was seeking were not privileged.
3. United Statea v. Perr.ell Qreen. before Judge Alfred Luongo (now
deceased) , United States District Court for the Eastern District of
Pennsylvania, Crlra. No. 77-254. The trial began on September 13, 1977.
The sentencing was December 9, 1977.
Opposing counsel was Joseph C. Santaguido, Esq.
North American Building, Second Floor
121 South Broad Street
Philadelphia, Pa. 19107
215 893-O9C0
This case Involved the investigation and prosecution of an individual
whom postal inspectors believed to have been involved in a large scale
and ongoing theft of U.S. Treasury checks from uil carriers. I obtained
a conviction before Judge Luongo, and Istsr was abls to perauade the
dcfsadant to eocperate In the continuing investigation. The caaa waa
significant in thst it put an end to a ring that had baan routinely
bcralarising sMll boxes In ssveral high rise apartownt buildings in
Philsdalphia and stealing aoclal sscurity ehaeka.
a. qnltad StLmt.m* v. Prair Quartermaln. bafors JUdga Nonaa Shapiro. United
States District Court for the Bastsm District of Parjtsylvania. Crlm.
No. 7S-308, 613 P. 3d SB Ord Cir, ISBO) . The defendant was indicted on
October 20, 1978, the indictswnt was dismissed by Judge Shapiro on
February 8, 1979, and the United Statea appealed on February 3,2, 1979.
Opposing counsel was Alan A. Turner, Esq.
Xuttsr. Turner. Solomon S DiPiero
Suite 750, The Curtis Center
Indapandanee Kail Nest
Philadelphia. Pa. 1910S
704
215 925-9200
The case concerned the prosecution of a defendant who had previously
been placed In tha witneaa protection program. He was thereafter
indicted for manufacture of methamphetamine, as well as Illegal
iTJinufacture and aale of allencera. The caae was Interesting because the
goverr.nent's main witness against the defendant was an individual whom
Che defendant had previously testified against (Zelmon) . Quartermain had
been given use immunity for his testimony and, following Zelmon' 8
conviction, Quartermain was given a new identity and placed into the
witness protection program. Following Zelmon' a conviction he agreed to
cooperate with an ongoing investigation and furnish DEA agents with
evidence of a large methamphetamine distribution ring. Zelmon was given
a body wire, but the person he "fingered" as being the "meth king" was
none other than Quartermain. Quartermain' e attorney argued that his
client's indictment for Illegal drug and weapons manufacture should be
quashed as it violated his client's use immunity.
In a caae of first impression, the District Court dismissed the
indictment, however, the decision was appealed to the Third Circuit
which reinstated it. I handled a large part of the Investigation and
indictment, but transferred to a different unit within the office
(political corruption) before the matter was argued in the Third Circuit
and, consequently did not argue it or represent the government when the
matter finally came to trial.
5. Homeowr.erB' ABSociarion of Philadelphia v. Philadelphia before Judge
Abraham Gaffni, Court of Common Pleas, Philadelphia County, April Term
1980, No. 2042. A Complaint for Declaratory Judgment was filed June 13,
1960, against the City of Philadelphia seeking a detertnina^ion that a
recently enacted ordinance was unconstitutional.
The attorney for plaintiff was Darrell M. Zaelow, Esq.
455 Two Greenwood Sq.
Bensalem, Pa.
215 750-6249
I represented the City of Philadelphia.
This litigation arose from an ordinance that was passed (Bill 1202 (a))
in response to the city's housing crisis. The ordinance created a
procedure whereby interested persons could repair vacant and dilapidated
housing stock, acquire a mechanics lien for the work done, and then bid
in the amount of that lien at a subsequent Sheriff Sale of the property
which would be brought based upon delinquent taxes, liens and fines. The
prospective buyer would first have to sign a commitment to reside in
that property for a specified period of time to discourage speculators
from buying up vacant housing. The Homeowners' AsBociatlon brought suit
alleging that the ordinance allowed an unconstitutional taking of
property without due process. The suit was dismissed by Judge Gaffni.
6 . United States vs. John Ellis. Roseboro McMillan, et al. Before Judge
Van Artedalen, United States District Court for the Eastern District of
IT
705
P«nn«ylv«nU, CriK. Koi. 77-42t-01 to •J'f-*2»-0t, 595 F.2d 154 (3rd Clr.
197S; . Tb« defendant* w«r« ir.dictad on October «, 1977, and trial began
•torch 3, 1971 and ended March 33, 1971.
Oppoeing counael waa A. Cherlee Perato Bx., Eaq.
Naahlngton W. Ildg.
335 8. Eighth St.
Philadelphia. Pa. :910S
315 935-5000
I was not trial counael on thia caae but aaeleted with the grand jury
ir.vestlgatlori. The trial proaacutor waa:
Jamea Coleman, Beq.
Ballard, Spahr, Andrewa k Zngeraoll
1735 Market Street Slat Ploer
Philadelphia, Pa.
215 8(4-8101
Tbia caae involved the indictment and proaectlon of aix homicide
detectivea for the violation of the civil righta of citizena during an
investigation into a racially motivated fire bombing of a reeidence in
which several people %fere killed. The detectives Involved had engaged in
a pattern of physical and psychological intimidation of neighbors and
defendants which ultimately resulted in an Innocent peraon being wrongly
convicted of the offenee and serving over a year in priaon before the
U.S. Attorney's office could eetabliah his innocence through the
prcsection of Che actual flrabomber.
•7 united fit«f V. Thatnaa McNellie. Bernard Gilbert, at. «1. Before
Judge Van Artedalen, United States District Court for the Eaatern
District of Pennsylvania, Crim. »ob. 79-210-01 to 79-210-03. The
defendante were indicted on September 24, 1979, trial began on March IB,
198C. and the defendants plead guilty on March 19, 1980.
Lead opposing counsel was Joseph Bonglovanni, III, Esq.
Bongiovanni fc Berger
121 South Broad Street Suite 1700
Philadelphia, Pa. 19102
215 7(0-0040
1 left the office before the matter went to trial. I was Involved with
coordinating the grand jury investigation, and presenting the matter to
the grand jury which returned IndlctmentB against owners and employeee
of a trucking company. The case involved an ongoing theft of large
quantities of coca beans from customs at a Philadelphia pier. The matter
waa significant because it ended what appeared bo be an ongoing pattern
of thefts of merchandise from customs custody.
a. Louis santere v. citv ef Philadelphia. Before Judge Stanley
Oreenberg. Court of Coir.mon Pleas, Philadelphia County, 59 Pa. Cmwlth.
114, 429 A. 2d 113 {1981} .
18
706
(Trial date* throughout 1»72 through l»ei) In Court of Cotiwon PlM«,
Fhlladdlphia Pannsylvanla .
Trial couna*: for City of Philadelphia waa Micholaa Panaralla, Eaq.
404 S. Front Straat
Philadalphia, Pa. 191C6
21S 574-9700
Thla ongoing litigation waa brought by raaidanta of Naw Jaraay who
worked 'n Philadalohia and wara challanglng tha lagality of their being
required co pay Philadelphia' a wage tax. I waa not directly involved xn
the courtroom litigation, but did auparviaa a portion of it. It waa
aignificant becauee the caea eatabllahed tha legality of applying the
wage tax to nonreaidenta who were ett«>loyed in the City of Philadelphia.
The challenge waa brought under the atate ccnatitutlon. The cited caee
involved an appeal of the trial judge (Judge Stanley Greenberg) granting
tha City' a motion for auinir.ary judgment. The plaintiff a appealed to the
Comnonwealth Court, and that Court 'a affirmance of aumnary judgment ia
the cited decision. The caee ia aignificant not for the legal iaauea it
raiaed (those were aettled in a aeriea of caaea brought by the aame
plaintiffs over a ten year period) , but becauae the Court finally
Imposed sanctions against plaintiffs for vexatious conduct and frivoloua
litigation. This paved the way for collection of the Philadelphia wage
tax from non residente who owed the tax but had engaged in protracted
warfare via the courts to avoid paying it.
4. United Stataa v. Wnbert Dobson. Before Judge Clifford Scott Green,
Dnlted States District Court for the Eaatem District of Pennsylvania,
Crin. No. 77-283, 585 P. 2d 55 (1978).
Defense Counsel was Robert B. Mo«enter, Esq.
Hozenter and Mosenter
1411 Kalnut St.
Suite 700
Philadelphia. Pa. 19X02
215 5S8-4630
This was a case of first impression, and became a leading case on the
Ir.teracate Agreement on Detainers. Pub L. Mo. 91-538, 11 1-8, 84 Stat.
1397-1403 (197), codified at 18 O.S.C. App. 1395-98 (1974). The
defendant had been on parole after eervlng part of a lengthy state
sentence, and wae charged with new atate and federal offenses. Ha posted
bail on those offenses, but was detained in atate custody as a technical
parole violator. Subsequently he was transferred to federal custody for
twc bail hearings on federal charges, and at the conclusion of each
hearing he was sent bacJc to state custody. Thereafter, while etill in
state custody, he waa Indicted on federal chargea related to the
magistrate's warrants for which he had been twice transferred to federal
custody.
The defendant moved to dismiss the federal indictments alleging that
hia return to state custody pursuant to his parole detainer prior to
resolution of the federal charges violated the Interstate Agreement on
Detainers, and that the federal charges therefore had to be dismissed
19
707
pursuant to the terms of that law. X arguad unauccesafully to the
District Court that Congress never intended the Act to apply to parole
detainers, and that it should only be applied to terma of imprisonment
resulting from sentences imposed pursuant to determinations of guilt.
The Court ruled in favor of the defendant and dismissed the federal
indictments. On appeal, the decision waa revereed, and the Indlctmenta
were reinstated. I argued before the District Court, and prepared the
appellate brief. I did not argue to the Third Circuit, however, as I
tranaferred to a different unit (public corruption) before the appeal
was argued.
10. Tmnrlaoned gjtiiene' Onion fT.C.D.'^ V. Shape. Before Chief Judge
hold, Civ. United States Sistrict Court for the Kaatern Diatrict of
Pennsylvania, No. 70-3054 (lead case), filed March 4, 1971 and
continuing on to the present.
Counsel for the class of plaintiffa included:
John Snavely, Eaq.
[no longer practicing law]
Gilbert Cantor, Esq.
[no longer practicing law]
Jack I,evine, Esq.
[no longer practicing law]
Francis R. Fillpl, Hsq.
Then Aast. Attorney General
Bureau of Corrections
Dept of Justice
P.O. Box 596
Carrp Hill Pa. 17011
814 355-4074
Amicus Curiae
Alan J. Davis, Esq.
Ballard, Spahr, Andrews & Ingersoll
1735 Market Street Slat Floor
Philadelphia, Pa.
215 864-8200
This was a claas action aui*: brought by numercua inmates in various
state penal institutions In Pennsylvania who had formed an entity called
the "Imprisoned Citizens' Union" (•l.C.U.*). The plaintiffs challenged
the constitutionality of the conditiona of their confinement. Although
such auits were, and continue to be, commonplace, this suit la
significant, at least in part, because of the breadth of the attack.
They alleged such things as an affirmative duty to provide not juat
nedical and dental treatment, but regular preventative examinations,
unduly broad restrictions upon reading material and mail, etc. One of
the partners at Wolf Block (Alan Davis) whom X came to work closely with
had been appointed Amicus Curiae by the Court shortly before X arrived
at the firm, and Alan asked me to write the amicus brief. The
2C
708
litigation continue* because of the terme of • consent decree, but the
Court felt the brief had greatly helped to focus issues, and clarify
relevant case, statutory and regulatory law.
19. Legal Activities i Describe the Bost significant legal activities you
have pursued, including significant litigation which did net progress to
trial or legal matters that did not involve litigation. Cesoribe the
nature of your participation in this question, pleaae omit any
inferatation protected by the attorney-client privilege (unless the
privilege has bsen waived) .
The most significant legal activities which I have pursued would
include some of the cases I have set forth above, particularly, my
reoreeentation of the United States Civil Righte Commission in l^LlLfid
states v. O'Keill in an attempt to enforce a subpoena against the City
of Philadelphia. It would also include ny participation in the grand
jury Ir.veatlgatlon which lead to the indictments in United States v.
John Ellia et . al . and the conviction of the individual who threw a fire
bcmb, icilling sleeping residents of a row house in Philadelphia. This
was related to the previously mentioned investigation into, and trial
of, tha six hoT.icide detectives and not only caused an innocent person
to be released from prison, it caused one who was guilty of killing
innocent people in their sleep to finally have to pay for his crime.
In addition, there were two grand jury investigations which I feel
merit mentioning as follows:
Grand Jurv Investigation of a National Oil
Company.
Another Assistant U.S. Attorney and I were
assigned by the then chief of the Special
ProGecutlons Unit of the Criminal Division of
the U.S. Attorney's Office to investigate
allegations of fraud bv a large national oil
company. This came during the time of an oil
crisis because of a purported shortage of oil
in the United States. The other Assistant who
Investigated it was named Frank Sherrran. He is
currently Chief of the Frauds unit of the U.S.
Attorney's office in Miami.
Ke spent a great deal of tine looking at the
Import records of the oil company and
interviewing various employees in New Jersey
and New York. The investigation was being
conducted by Customs officials. No indictment
was ever brought as there was insufficient
evidence of fraud. The allegations were that
the oil company was secretly importing and
stockpiling oil and then manipulating the
measurements of oil which it took in its
storage facllitlca in order to drive the price
21
709
of oil and ga*olin« up. X faal it was
aignif leant because of the magnitude of the
investigation and its importanee to this
nation's interests even though no one was
indicted.
SranJ Jurv Invaati9atiQn of SuTnr.er Faadlng
FiBgraiP
The main target was a food service contractor
who was under investigation along with several
snail churches. The investigation centered
around alleged fraud in the billing for, and
distributlcn of, food in the govemirent's
sunx.er luncheon program. The allegation was
chat the churches were billing for food not
ordered, and placing ghost emplcyeea on the
payroll. There were also charges chat a major
corporation that had won the contract to be
the food service vendor for the government was
charging the government for food chat it never
delivered, and that had never been ordered.
Although no indictments were brought as
there was insufficient evidence of fraudulent
intent (as opposed to negligent record
keeping) , the case is significant for the size
of the invest igatio.-. and the improvements in
the admlnletraticn of the program chat were
motivated by it.
In addition, in April, 1986, The Honorable Robert H.C. Nix, Jr.,
Chief Justice of the Supreme Court of Pennsylvania, appointed me to
the Pennsylvania Sentencing Commission. The Corvnisslon's membership
is determined by statute and consists of judges, legislators, a
defense attorney, a district attorney, and an academician. The
Commission writes guidelines which are used by evezy judge Ir the
Comnonwealth in imposing sentences for felonies or misdemeanors. I
was recently elected Vice -Chairperson of the Commission; and I am
now serving as Acting Chairperson due to the retirement of the
Chairperson. I also currently chair a sub-committee charged with
analyzing the Sentencing Guidelines and mailing recommendations to
the full Commission for general changes to their s'jbstance and
form. I feel that I was instrumental in formulating the revisions
which were subsequently adopted by the entire Comir.ission, and which
are awaiting submlesion to the legislature.
I feel that my continuing work as Chair of the Pennsylvania
Sentencing Commission is of crucial importance, and allows me to
make a real co.'-.tribution to society by developing sentencing policy
that balances existing reecurcep, the need to protect society, the
need to treat those offenders who do not pose a risk to their
fellow citizens' safety, and the need to punish those members of
aociety whc refuse to abide by its laws.
32
710
X feel that my teaching experience le eleo Important. Prom
January, 1980 to 1991 I was a lecturer In Law at Rutgere University
College of Law. z taught a Spring semester course in trial advocacy
to second and third-year law students.
23
711
ZX. rZNKMCZAL DATA AND CONTLZCT OP ZMTlMfT (rUBLZC)
1. Lift ceurc«B« ueounta and dKt«* of all aBtioipatad r«e«ipt« froa
d«f«rr«d iBcom* •rrang«a«nt>, stock options/ uneoaqplotsd contracts
and otkar futura banaflta wbieh you axpact to darlva from pravlous
bualcaaa ralatlonships, profasslonal sarvleas, flis Baaibsrshlps/
forser aaployarS/ clisnts, or eustosiars. tlaass dasoribs ths
arrangamanta you hava aada to ba ooi^ansatad la tba futura for any
financial or bualnaaa intarast.
Kona
a. txplaln how you will rtsolva any potantlal eoafllot of iatarsst*
Including tbs proeadura you will follow la datamlning thaso araas
of conoara. Zdantlfy tha eatagorlas of lltigatlea sad flnaneial
arrangaaanta that ara likaly to prasant potantlal conflieta-of-
Intarast during your initial sarvioa la tha poaitien to which you
hava boan noalnatad.
I do not think that my current involvament with any business entity
or organization would create the appearance of a conflict of
interest. However, I have always followed the policy that even an
appearance of a conflict should be avoided and I have thus recused
myself from sitting on any such case. In all such matters I have
followed all applicable Canons of Judicial Ethics, and applicable
provisions of the Code of Judicial Conduct and will continue to do
so. I will continue to be ae cognizanc of the appearance of
impropriety as I am of actual impropriety, and I will conduct
myself accordingly, both on and off the bench.
). Do you hava any plana, eosmitaiants, or agraaafiants to pursue
outside Mipleyaeat, with or without ceat^paasatioa, durlag your
sarvlee with the court? Zf ao, explaia.
Ko.
4. Liat sources and anouats of all incooia reeelved durlag the
calendar year pracadiag your Bominatioa and for the eurrent
ealandar year, including all salaries/ fees* dividends, interest*
gifts, rents, rcyaltiea, patents, honoraria, and other items
exceadlna #500 or more (if you prefer to do so, copies of the
financial disclosure report, racjuirad by the Ethics la Ooverameat
Act of 1971, may ba avibatitutad here.)
See a ccpy of my AO-10 financial disclosure form which is attached,
and hereby incorporated herein.
5. Maaaa complete the etteched financial net worth stateneat la
detail (Add aohadulea as called for) .
24
712
See attached Ktt Worth Statement and accompanying aehedulea.
C. Have you ever held a peaitloD or played a role la a polltieal
eaa^aisnT Zf ae, pleaae identify the partieulara of the caapaigB,
Ineludlns the eandidate, detea of the campaign, your title and
reaponeibilitiea .
The only activity which %»ould arguably be included la my active
can^aignlng for Robert Kennedy when he ran for Preeident in 19CB (X
believe that to be the year) . I waa in college at the time and had
no title ir any campaign organiiatien but diatributed flyera and
leafleta for the campaign. In addition, while in high echool, I waa
the etudent director of John T. Kennedy' e preeldential campaign in
1964. Thia involved a mock caiqpaign and election within the high
■ehocl .
25
713
I lev! 1/91
FINANCIAL DISCLOSURE REPORT
r#T«s
I..
t. Mrton liporllnc (Int rmm, first, aiddl* tnitlal)
MCKEE, THEODORE A.
i. Till* (Articl* III
Articl* III lud««».indie«tt Ktivt or
fcnior ttatut; iMistrst* JuOfCt Indlot*
full- or part-tiai)
JUDGE
7. Owntttr* or Office Adrirni
6TH fc MARKET STREETS
PHILADELPHIA
PA. 19106
2. Court or Orfonixtion
THIRD CIRCUIT COURT OF APPEALS 03/22/94
i. Icport Typo (chtck oppropriat* typo)
X Koaination, Data 0S/2?/V»
Initial Annual Ftral
S. Data of taper!
6. Raporting forlod
1/1/93
S. On th* batitof, tlw .inforvation containad i/i thi' ,'«E°Oivi
Ta, n ■yoplnion, in coapllancc uith appUcabls laifc and
tavianing Off Icar tignatura ,
IMPORTANT NOTES: The instructioiis acconipanyiiig this fonn must be followed. Complete all paiU,
checking the NONE box for each section where you have no reportable information. Sign on last page.
1. POSITIONS. (Reporting individual only, see pp. 7-8 of instructions.)
POSITION NAME OF ORGANIZATION/ENTITY
NOME (Ho raportabia positions)
n
General Partner
Puikee Associates
II. AGREEMENTS. (Rcponingindividualonly; sec pp. 8-9 of Instructions.)
DATE PARTIES AND TERMS
X NOME (No reportable agreements)
III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 9-12 of Instruaions.)
DATE SOURCE AND TYPE GROSS IN^COMI
(Wrom^a only) tyours, wt tpouse'i:
NONE (No reportable non-investraent income)
1993
2
1993
I
1993
1993
ComiTionwealth of Pennsylvania - judicial salary
$ 90000.0(
McKee & Shepard Medical Associates fwife's med. practice) ( S 180000. 0( ]
City of Philadelphia (Health Dept) (S) S 40000.0( '
Rent from rental properties S 17360.0i
^ $
714
riMAMCIXI. DISCLOSURE REPORT
M«w of Mrton Itportinc
HCKEE, THEODORE A.
»•!• af ■•pert
03/22/94
rv. REIMBURSEMENTS and GIFTS ~ Iransportalion, lodging, food, cnlcrtaiDmcat
(Includes thou lo tpouse ind dcpendcBl children', use Ibe parealbeltcals *(S)' ud '(DC)' lo iadicale reportabk
rcimbursemcnls and gifts received by spouse and dependent children, respectively. Sec pp. 12-14 of Instructions.)
SOURCE DESCRIPTIOH
Q
HOME (No Mch roportibit rtiitoirMatnls or iiftt)
V. OTHER GIFTS. (Includes those to spouse and depcndeni children; use the parentheticals '(S)' and '(DC)' to
indicate other gifts received by spouse and dependent children, respectively. Sec pp. 15-16 of Instructions.)
SOURCE DESCRIPTION
Q
HONE (No such roportobit t"t»>
VALVE
VI. LIABILITIES. (Includes those of spouse and dependent children; indicate where applicable, person responsible
for liability by using the parcntbelica) '(S)' for separate liability of the spouse, '{))' for joint liability of reporting
individual and spouse, and '(DC)' for liability of a dependent child. Sec pp. 16-17 of Inslrudioas.)
CREDITOR DESCRIPTIOH VALUE CODE*
n
HOMY (No roportabit Itattlttttt*)
Chemical Mortqaoe Co.
2
Unity Bank
Apifc Ing.
4
Lu Ann Thorndvke. M.D.
Mortq. - 4 unit dwelling (aother's residenc
Mortq. - bldq occupied bv wife's wedical pr
Howe Improv. loan f storm t replacement wind
Buyout of interest in medical partnership f
.vu,«c«Ms: i : u?jOjj,.r 45jj^ S : «J«?8it -•WiSJJ.ow K e?»«?i.; ll?M%
H • tioo.ooi to tno.ooo
715
rzaiuiciia. oxscLosnuB kifokt
NCKEE, THEODORE k.
Oat* •« Mpwt
03/22/94
VII. Pace 1 INVESTMENTS a«d TRUSTS - iMO«c value, traMactioos (ladudes those of tpoute
and (kpendenc children; Sec pp. IS- 26 of Inslractioas.)
r(ac« •Cl>* aftar Mch mmi
wa^ fria prior dlKlaaur*.
Traiaacllam durlnt raportlng pM-lod
<i)
(2)
(i>
(2>
If net mmat Urn diacteaure |
>#■
(S>
(4)
rantoclTon)
■on (■« r«p>rl*(t
* Calvw^ Ariel riml <0C)
«cna
MwtnU Tax (Mspt rxid (J)
lent
' ftwanii Calancad Ft«id (t)
«0K
Caliwrt Appraciatlon Find (J>
D
Dl«
a*ll
»/u
i
•
' Mn-ldian tank. Honey Harket
■on*
*
7
•
»
10
11
12
IS
u
15
14
ir
i»
' ls.-?i^'Si'nKj wi5^,»;.'K8.ooo fUio°8i,'?o»ii«i?ooo m^'.
ioi°,rtn.o,ooo saifS'jKy! hWooo
MUrcS?*ii » oj> im»88,VB8o.«H. 8m?8i/?.n?:li88.oookai?*'^iJi%V88o?88o «•»««.'«"• »»o.ooo
» ruf cSf:''S,'°*»= 8:ssK'i»:. I'inn'*" •""• -'"" wi?«?a T^.ah/«ark..
716
rXMMKZM. DZSCUMUM MtOKT
Mm af MrMW MM'>''>t
HCKEE, THEODORE A.
03/22/94
VIII. ADDITIONAL INFORMATION or EXPLANATIONS. (lwficile|artorilep«L)
717
riMAMCIAL DISCLOSORE REPORT
IX. CERTinCATlON.
Hiiw of ftrton taportfno
MCKEE, THEODORE A.
0*te of loport
03/22/94
In compliance with the provisions of 28 U.S.C. 455 and of Advisory Opinion
No 57 of the Advisory Committee on Judicial Activities, and to the best of my
knowledge at the time after reasonable inquiry, I did not perform any
adjudicatory function in any litigation during the period covered by this report
in which I, my spouse, or my minor or dependent children had a financial
interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I certify that all the information given above (including information
pertaining to my spouse and minor or dependent children, if any) is accurate,
true, and complete to the best of my knowledge and belief, and that any
information not reported was withheld because it met applicable statutory
provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria
and the acceptance of gifts which have been reported are in compliance with the
provisions of 5 V^S.f^. app. 7, 501 et. seq. , 5 U.S.C. 7353 and Judicial
Conference regu
Signature
Date
W^
21
NOTE: *NY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE
THIS REPORT MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. A. APP. 6,
104, AND 18 U.S.C. 1001.)
FILING INSTRUCTIONS:
Mall signed original and 3 additional copies to:
Committee on Financial Disclosure
Administrative Office of the
United States Courts
Washington, D.C. 20544 ,
718
FINANCIAL STATEMENT
NET WORTH
A§§feT§
— ■ LIABILITIES
CASH ON HAND AND IN BANKS
$26,500.00
Notes payable to banks - secured
Notes payable to banks-unsecured
Notes payable to relatives
Notes payable to others
Accounts and bilb due
Unpaid income lax
Other unpaid lax and interest
Real Esute mortgages payable
add schedule
Cbaiicl mortgages and other liens
VyMe
Other debts • itemize:
AUTO NOTES
$26,500
U.S. Govcrnmeni securities
SOOO
SO
Listed Securities
SOOO
SO
Unlisted Securities
SOOO
SO
Accounts and notes payable:
SOOO
SO
from relatives and friends
$0.00
$3,000
Due from others
S0.00
SO
Doubtful
S0.00
so
Real Estate Owned-add schedule
1369,000.00
$76,000
Real Esute morlfagcs receivable
S0.00
SO
Autos and other personal property
$22,300.00
SO
Cash value-life insurance
$io,ooaoo
Other assets-itemize:
$38,500
RETIREMENT ACCOUNTS
133,000.00
UGMA ACCOUNTS FOR KIDS' COLL
$20,000.00
CALVERT ARIEL MUTUAL FUNM
$18,000.00
PHOENIX TAX EXEMPT MUTUAL F
$8,000.00
Toul liabililes
Net Worth
Total liabililes and net worth
$144,000
CHECKING & SAVING ACCTS
$20,000.00
$403,000
TOTAL ASSETS
$J47«0.00
$547,000
CONTINGENT LIABILITIES
GENERAL INFORMATION
As endorser, comaker etc
SO
Are any assseis pledged?
Are you a defendant in any actions?
Have you ever uken bankruptcy?
NO
Legal Claims
$0
SEE BELOW
Provision for Federal Income lax
SO
NO
Other special debt
SO
719
REAL ESTATU SCHEDULE
ADDRPSS
USE
PURCHASE PRICE
BALANCE
APPROX VALUE
Eourrv
SWPEUIAMROAD
iOOO WEST OXFORD ST
5400 GREENE ST
RESIDENCE
WIFE'S OFFICE
RENTAL
$35,000
$50,000.00
$110,000.00
$15,00000
$20,000.00
$41,00000
$175,000
$85,000
$185,000
$160,000
$65,000
$144,000
•mrAL INDEBTEDNES
TOTAL EQUTTY:
$76,000
$M9.000
720
zzz. onmAL (tuiLzc)
1. An •thlcal eesaldaratlee undar Csnoa 2 of th« JUMrloan Bar
Aaaoelatlon's Cod* of Vrofosalonal Xoopoaalbllity oalla for
■•vory l«vy«r, rogardlaaa of prefoaaloaal preadaosco or
profoaalonal tforkload, to find aoaa tlao to partlelpata la
aarving tha diaadvaatagod." Doaerlba what you hava doaa to
fulfill thaaa raapoaalbilltiaa, llatlag apaoifle laataaoaa aad
tha amouat of tlaa davotad to oaoh.
During and olnce college X have devocad time and energy to
attempting to help othera who were leao fortunate. Shortly after
Z arrived in Philadelphia in 1975 Z began an aaaociation with a
young boy who waa part of the Big Brothera program. Hia Big
Brother waa leaving town because of a Job change, and Z took over
for hin on an informal baaia. Z devoted approximately one
Saturday afternoon per month to apending time with my "little
brother" . 1 have continued to atay in touch with him except for a
five year period when he was eerving a priaon eentence. He ia now
working and doing well.
In approximately 1980, : joined an organization knovm as
Concerned Black Men, lac (CBM) . The organization conaiata
primarily of retired police officer* and fire fightera, but ia
open to any one who wiehes to apend time working toward caring
for ycuth. (The organization' a motto ia "For Oaz Youth"). The
organization sponaora an annual banquet at which It announcea
winnera of ita eaaay conteat, and providea winnera with
acholarahip money for college.
CBM alao works closely with the chess teams at Vaux and Douglaa
school*. Both teams have won international recognition, and both
team* exemplify the organization' a feeling that urban youth
remain an untapped and wasted source of ability and potential. As
part of its emphasis on providing positive role models for
"disadvantaged" individuals, a few of ua regularly viaited
prieone to mciet with inmates and discus* what they could do upon
their release to Dkeep fror. coming back theneelves and 2) help
young people in their community avoid the pitfalls which lead to
prison.
The organization was the only organization in Pennsylvania to
win President Reagan's "Volunteerism" award a few years ago.
While active in" the organization 1 devoted several hours each
week to it. I becatre inactive after the birth of our first child
because I could no longer honor the time commitment without
taking tiire away from my own family. 1 etill remain in contact
with the meirJcershlp, but I could not be considered an active
member.
Until It became defunct in 1990, I was on the board of
directors of Crisis Intervention Network (1983 - 1990) which was
an organization of community residents, public officials and
professionals dedicated to fighting gang violence and drug
26
721
dependency through education and intervention in the neighborhoode
where gangs are a problen. Z »pent approximately 2 hours a month
working with thia organizatian, except for the last eix months of
the organization when I apenc at leaet 3 houra a day addressing the
needs and concerns of the organization.
Z currently sit on three beards of directors (Crime Prevention
Association, Diagnostic and Rehabilitation Center, New Directions
For Women, Inc.). The total time devoted to this is approximately
3 hours per month. Each' of these is an organization working with
disadvantaged individuals as follows:
Crine Prevention Associatiea is a nonprofit social service agency
which runs three community centers (some of which were formerly
Boys' Clubs of America) and sponsors programs which include
tutoring, day care for wcrJcing mothers, health education for single
expectant mothers, drug abuse education, and after school
recreation as an alternative to the streets.
Diagnostlo and Rehabilitation Center, Inc. worlcs primarily with
drug dependent individuals and targets the hardcore, drug dependent
(or dually diagnosed) homeless individual. It runs outpatient rehab
and treatment facilities in various communities around the city.
New Olreotions for Wonen, Inc. (forrerly Icnovm as Program for
Female Offenders) is an organization which maintains a facility for
women who have been classified as offenders for various reasons.
The facility functions as a "halfway house" and a wcrJc release
center. The residents receive drug testing and education (most of
the drug therapy is done at programs which specialize in outpatient
addiction services) and job counseling.
a. The Amerioan Bar Asaeciatien's Commentary to its Code of
Judicial Conduct states that it is Inappropriate for • judge to
hold membership in eny organization that invidiously discriminates
on the basis of race, sex, or religion. Do you currently belong or
have you belonged, to any organisation which discriminates --
through either formal meaibership requirements or the practical
implementation of membership policiesT if so, list, with dates of
membership. What you have done to try to change these policies?
I have not belonged to any such organizations.
3. Is there a selection aonmissioa in your jurisdiction to
raooamend candidates for nomination to the federal courts? If so,
did it recoicmand your nomination? Please describe your experience
in the entira judicial selection process, from beginning to and
(including the circumstances which led to your nomination and
Interviews in which you participated) .
Although there is such a commission for selection to the District
Courts, there is none for selection to the Circuit Court. However,
my Senator. Harris Wof ford, did engage in a screening process which
included a personal interview and a very inclusive and
compreheneive inqpiiry of prominent metrbers of the local bar to
determine the professional qualifications, Integrity, demeanor and
27
722
ability of thoa* paraonc who had axpreased an intaraat in the
Circuit Court. Z alao prsvidad the Senator with some copies of
opinions which I had written. The Senator recommended ne to the
White Hcuse, and I was then interviewed by the White Houee Counsel
and me'nbera of his staff as well as representatives of the United
States Department of Juatice, and both Interviewed and Inveetigatad
by the F.B.Z. and the A.B.A.
4. Has aDyone involved in the prooess of seleetiag you as *
judicial nominee diseussad with you any spaeifio ease, legal iasue
or quaatien in a aaaner chat could reasonably be interpreted as
askino you how you would rule on suoh case, issue, or question? If
so, please explain fully.
This did not happen.
5. Please discuss your views on the following orltioian involving
"judicial aetivlaa."
The role of the federal judiciary within the Federal govemaeat,
and within aociety generally, has beecne the subject of inoreaaing
controveray in raeaat yeara. Zt has beeene the target of both
popular and aoadeoic critiolaa that alleges that the judicial
brancb has usurped itany of the prerogatives of other branches and
levels of govemsMnt.
gone of the characteriatioa of this "judicial activism" have been
•aid to include I
a. A tendency by the judiciary toward problem- aolution rather
than grievance-resolution)
b. A tendency by the judiciary to esiploy the individual
plaintiff as a vehicle for the imposition of far-reaching orders
extending to broad classes of individuals i
o. A tendency by the judiciary to%r»rd looaening jurisdictional
requireaenta auch aa atanding and ripeness; and
d. A tende&oy by the judiciary to ia^ose itaelf upon other
institutions in the manner of an adminiatrator with continuing
oversight responsibilities.
It is the represent at ivea who are elected by popular vote who
cust conduct the business of the people, and not judges who are
Isolated fron public opinion by lifetime appointments, and
therefore not responsible to the electorate. Thus, to the extent
that "judicial activism" impliea judicial legislating, it has no
role in our system of government. This does not, however, mean that
broad pronouncements such aa those exemplified by ^rown v. Board of
Ed\ication are necessarily improper. It does mean that such
prononucements must emanate only from the United States Supreme
Court, rust be resorted to only in the rarest of situationa. and
must be conslatent with evolving principlea of our democracy.
It la not the role of a Circuit Court judge to use his or her
personal vlewa to engage in "judicial activism." The role of a
Circuit judge ie to follow the decisions of the Supreme Court. If
the Supreme Court altera ite prior decisicns, or paints with a wide
■ at
723
brush in r«aehing « daclslon. it i* thm job of th« Circuit judg* to
b% guided by the language tha Suprema Court haa uaed, and to atay
within the borders erected by auch language. Stare deciaia thua
precludea "judicial activiatr." on the part of Circuit judgea who
have been awom to uphold the law of the land.
2t
724
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full neune (include any former names used.)
Billy Michael Burrage.
The name I generally go by is Michael Burrage.
2. Address: List current place of residence and office
address ( es ) .
Residence: 400 Maple Drive
Antlers, Olclahoma 74523
Main Office: Steunper & Burrage
P. O. Box 100
112 North High
Antlers, Oklahoma 74523
Branch Office: Stcunper & Burrage
P. O.Box 28
701 S. Mississippi
Atoka, Oklahoma 74525
3. Date and place of birth.
June 9, 1950; Durant, Oklahoma.
4. Marital Status: (include maiden name of wife or
husband's name) List spouse's occupation, employer's neime
and business address (es).
Carolyn Aletha Booker Burrage
Assistant Principal - Grade School
Antlers Public Schools
Antlers, Oklahoma 74523
5. Education; List each college and law school you have
attended, including dates of attendance, degrees received,
and dates degrees were granted.
Southeastern State University
Durant , Oklahoma
Attended 1969-1971
B.S. Degree (1971)
Business Administration, major
Sociology, minor
-1-
Bur/2.Sen,dn29
725
University of Oklahoma
College of Law
Attended 1971-1974
Juris Doctor Degree (1974)
6. Employment Record: List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you
were connected as an officer, director, partner,
proprietor, or employee since graduation from college.
1 . During law school I was a legal research
assistant to Eugene Kuntz for his Volume 5, Kuntz on Oil &
Gas. Eugene Kuntz is one of the nation's leading
authorities on oil and gas law and is the author of a
multi-volume treatise on oil and gas law.
2. During my last semester of law school, in 1974, I
was a legal intern for the law firm of Stamper & Otis.
3 . After graduation from law school and passing the
Olclahoma Bar exam, I was an associate with Stamper & Otis
until 1975.
4. From 1975 to 6-30-93, I was a partner in the law
firm of Stamper, Otis & Burrage. Mr. Otis resigned from
the firm in June of 1993 and since this date the firm has
been known as Stamper & Burrage.
5. From 1982 to present. Director, First National
Bank at Antlers, Oklahoma.
7. Military Service: Have you had any military service? If
so, give particulars, including the dates, branch of
service, rank or rate, serial niomber and type of discharge
received.
No.
8. Honors and Awards; List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee .
Graduated Order of Coif from University of Oklahoma,
College of Law, 1974.
Editor, Oklahoma Law Review, 1973-1974.
1977 - Outstanding Young Lawyer Award given by the Oklahoma
Bar Association.
-2-
Bur/2.Sen,dn29
726
1990 - University of Oklahoma; Distinguished Alumnus,
College of Law, University of Oklahoma Centennial.
1991 - Neil E. Bogan Professionalism Award given by the
Oklahoma Bar Association.
Bar Associations: List all bar associations, legal or
judicial-related committees or conferences of which you are
or have been a member and give the titles and dates of any
offices which you have held in such groups.
Oklahoma Bar Association (member since 1974)
1990 - Vice President and President
1990-1991 - Member, Board of Governors
1984-1986 - Member, Board of Governors
Served as a member of the House of Delegates
to the Oklahoma Bar Association as
representative from Pushmataha County
for various years since 1974
1987-1990 - Trustee, Oklahoma Bar Foundation
Fellow of the Oklahoma Bar Foundation
1937-1989 - Member, Legal Specialization
Committee, Chairman 1989
1977 - Member, Continuing Legal Education
Committee
Appointed by the Oklahoma Supreme Court to
serve as a member of the Oklahona
Supreme Court Comnlttee for Unifom
Civil J\iry Instructions. These
instructions have been used since 1979
by the District Courts for the trial of
civil cases.
Appointed by the Oklahana Supreme Court to
be a roenber of the second Oklahana
Supreme Court Coinnittee for Uniform
Civil J\iry Instructions. The new
instructions %«ere adopted by the
Oklahoma Supreme Court in 1992 and are
now used by the District Courts for the
trial of civil cases.
Appointed by the Oklahoma Supreme Court, in
November of 1992, to the Standing
Committee to monitor, update and revise
the Oklahoma Uniform Civil Jury
Instructions.
-3-
Bur/2.Sen,dn29
727
Appointed in 1989 by the Honorable Frank H.
Seay, as a Member and Chairman of the
Uniform Rules Committee for the United
States District Court for the Eastern
District of Oklahoma.
Served on the faculty for the following
Continuing Legal Education seminars:
1) Oklahoma Uniform Jury Instructions
Civil, March, 1983
2) Oklahoma Appellate Advocacy
April, 1983
3) Oklahoma Evidence, State & Federal
Current Trends, Spring 1984
4) Insurance Litigation, Spring 1988
5) Faculty member for
Continuing Legal Education seminar
in May, 1993, in Ardmore, Oklahoma.
Appointed in 1993 as a Member of the
Professional Responsibility Tribunal
for the Oklahoma Bar Association (PRT).
The PRT hears cases involving lawyer
misconduct and makes recommendations to
the Oklahoma Supreme Court as to what,
if any, discipline should be imposed.
American College of Trial Lawyers (inducted 1993)
American Bar Association (member since 1974)
Member, House of Delegates, 1990
Fellow, American Bar Foundation
Pushmataha Covuity, Oklahoma, Bar Association
(member since 1974)
10. Other Memberships; List all organizations to which you
belong that are active in lobbying before public bodies.
Please list all other organizations to which you belong.
American Trial Lawyers Association;
Oklahoma Trial Lawyers Association;
Life member. University of Oklahoma, College of Law
Association (Board member 1979-1981);
Member by blood of Choctaw Tribe of Oklahoma.
Other : None .
-4-
Bur/2.Sen,dn29
728
11. Court Admission: List all courts in which you have been
admitted to practice, with dates of admission and lapses if
any such memberships lapsed. Please explain the reason for
any lapse of membership. Give the same information for
administrative bodies which require special admission to
practice.
June 12, 1974 - All Oklahoma State Courts;
June 26, 1974 - United States District Court for
the Eastern District of Oklahoma;
12,
January 9, 1980
March 29, 1982
- United States Court of Appeals for
the Tenth Circuit;
Supreme Court of the United States
of America;
August 12, 1993 - United States District Court for the
Northern District of Oklahoma.
Published Writings; List the titles, publishers, and
dates of books, articles, reports, or other published
material you have written or edited. Please supply one
copy of all published material not readily available to the
Committee. Also, please supply a copy of all speeches by
you on issues involving constitutional law or legal
policy. If there were press reports about the speech, and
they are readily available to you, please supply them.
1. Estate & Gift Taxes: Flight Insurance,
Volume 27, Summer 1974, Number 3,
Oklahoma Law Review at Page 510.
2. Estate & Gift Taxes: Oklahoma's New Disclaimer
Statute, Volume 27, Winter 1974, Number 1,
Oklahoma Law Review at Page 62.
This article was also published in Fundamentals
of Estate Planning, University of Oklahoma Law
Center, at Page 75.
3. Oklahoma Law in Federal Courts,
published in the Quarterly Issue of the
Oklahoma Bar Journal, June 1976, at Page 82.
Oklahoma Uniform Jury Instructions-Civil
An Overview, published in Publication No,
Oklahoma Bar Association, Department of
Continuing Legal Education, March 1983.
149,
Bur/2. Sen, dn29
729
•5. Problems of Relevancy Other Than Rule 403,
published in Publication No, 106, Oklahoma
Evidence State and Federal Current Trends, the
Oklahoma Institute of Continuing Legal Education,
Inc. , Spring 1984.
6. Bad Faith - Plaintiff's Perspective or "If The
Insurance Company Does Not Pay, We'll Sue Them
For Bad Faith," published in Publication No. 301,
Insurance Litigation, Oklahoma Bar Association,
Continuing Legal Education, Spring 1988.
13. Health: What is the present state of your health? List
the date of your last physical examination.
Good; September 30, 1993.
14. Judicial Office; State (chronologically) any judicial
offices you have held, whether such position was elected or
appointed, and a description of the jurisdiction of each
such court.
1. Appointed November 16, 1981, by the Honorable Pat
Irwin, Chief Justice of the Oklahoma Supreme Court, to
serve as justice on Temporary Division No. 82 of the
Court of Appeals, State of Oklahoma to decide the
appeal of and render opinions, with two other
appointed justices in three cases.
2. Appointed October 8, 1991, by the Honorable Marian
Opala, Chief Justice of the Oklahoma Supreme Court, to
serve as justice on Temporary Division No. XII of the
Court of Appeals, State of Oklahoma, to decide the
appeal of and render opinions, with two other
appointed justices in three cases.
The Oklahoma Supreme Court, when their caseload gets heavy,
appoints Temporary Courts of Appeals to decide cases and
render written opinions on those cases assigned the
Temporary Courts of Appeals.
15. Citations: If you are or have been a judge, provide:
(1) citations for the ten most significant opinions you
have written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or
where your judgment was affirmed with significant criticism
of your substantive or procedural rulings; and
(3) citations for significant opinions on federal or state
constitutional issues, together with the citation to
appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, please
provide copies of the opinions.
Bur/2.Sen,dn29
730
Opinions rendered v/hen serving on the Temporary Court of
Appeals set forth in No. 14 above are:
a) Case No. 55,508, Astro Drilling v. Perry Oil
b) Case No. 55,617, Charley True Auto Service
V. Blubaugh
c) Case No. 55,799, Thurmond et al. v. Jackson
et al.
d) Case No. 75,423, American Reinsurance
Company v. Michael B. Birnie and L. B.
Windham, et al.
e) Case No. 75,302, Walt Garner Associates,
Inc., V. Nick Alan and David DiBenedetto and
National Foundation Life Insurance Company
f) Case No. 75,300, Evelyn Price v. Ray Riggs
and Jeanette Riggs d/b/a Custombuilt Patio &
Awning Company
16. Public Office; State (chronologically) any public
offices you have held, other than judicial offices,
including the terms of service and whether such positions
were elected or appointed. State (chronologically) any
successful candidacies for elective public office.
None.
17. Legal Career;
a. Describe chronologically your law practice and
experience after graduation from law school including;
1. whether you served as clerk to a judge, and if
so, the name of the judge, the court, and the
dates of the period you were a clerk;
I have not served as a clerk to a judge.
2. whether you practiced alone, and if so, the
addresses and dates;
I have never practiced alone.
3. the dates, names and addresses of law firms or
offices, companies or governmental agencies with
which you have been connected, and the nature of
your connection with each;
Bur/2. Sen, dn29
731
January 2, 1974, to July 26, 1974
Stamper & Otis
Box 100
Antlers, Oklahoma 74523
Legal Intern
July 26, 1974, to January 2, 1975
Stamper & Otis
Box 100
Antlers, Oklahoma 74523
Associate
January 2, 1975, to June 30, 1993
Stamper, Otis & Burrage
Box 100
Antlers, Oklahoma 74523
Partner
June 30, 1993, to Present
Stamper & Burrage
Box 100
Antlers, Oklahoma 74523
Partner
1. What has been the general character of your law
practice, dividing it into periods with dates if
its character has changed over the years?
The law firm of Stamper & Burrage is engaged in
the general practice of law and handles both
civil and criminal cases in state and federal
courts at the trial court level and appellate
level. I would not say that the character of my
law practice has changed over the years, however,
as time has passed most of my time in the
practice has been involved in litigation.
2. Describe your typical former clients, and mention
the areas, if any, in which you have specialized.
My clients include individuals who have sustained
personal injuries generally through defective
products, medical negligence or vehicle
accidents. I also represent or have represented
individuals charged with crimes; insurance
companies, oil and gas companies, banks,
companies involved in wood processing and paper
industry, and hospitals. I have not specialized
in any one area.
-8-
Bur/2.Sen,dn29
732
c. 1. Did you appear in court frequently, occasionally,
or not at all? If the frequency of your
appearances in court varied, describe each such
variance, giving dates.
I appear in court frequently, usually on a
monthly basis.
2. What percentage of these appearances was in:
(a) federal courts •
(b) state courts of record;
(c) other courts.
(a) 15% to 20%
(b) 80% to 85%
( c ) None
3. What percentage of your litigation was:
(a) civil;
(b) criminal.
(a) 95%
(b) 5%
4. State the number of cases in courts of record you
tried to verdict or judgment (rather than settled),
indicating whether you were sole counsel, chief
counsel, or associate counsel.
I have probably tried in excess of 100 cases to
verdict or judgment and in most, if not all, I was
either sole counsel or chief counsel.
5. What percentage of these trials was:
(a) jury;
(b) non-jury.
(a) approximately 50%
(b) approximately 50%
18. Litigation; Describe the ten most significant litigated
matters which you personally handled. Give the citations,
if the cases were reported, and the docket number and the
date if unreported. Give a capsule summary of the
substance of each case. Identify the party or parties whom
you represented; describe in detail the nature of your
participation in the litigation and the final disposition
of the case. Also state as to each case:
Bur/2. Sen, dn29
733
a) the date of representation;
b) the name of the court and the ncune of the judge
or judges before whom the case was litigated; and
c) the individual ncime, addresses, and telephone
numbers of co-counsel and of principal counsel
for each of the other parties.
Case #1. State of Oklahoma vs. Lorelei Lee Rice;
in the District Court of Choctaw County, Oklahoma
Case No. CRF-75-54
Judge: Honorable Neal Merriott
(Neal Merriott is now in private practice
in Atoka, Oklahoma)
In 1975, my partner, Joe Stamper, and myself
represented Lorelei Lee Rice, who was charged with
Murder in the Second Degree as a result of killing her
husband. Ms. Rice and her children were the victims
of many years of severe physical abuse from a husband
and father who was an alcoholic. Ms. Rice did not
have the financial resources to pay for all time
necessary to prepare and try this case to a jury or to
employ the experts needed in the area of psychiatry.
The trial court was very restrictive with regard to
evidence of physical abuse in both the trial of the
case and jury instructions. At the trial court level,
she was convicted of manslaughter and given a 12 -year
sentence. Joe Stamper and myself represented Ms. Rice
through her jury trial. Other counsel handled the
appeal of this case and on appeal the Court of
Criminal Appeals reduced the sentence to four ( 4 )
years and it was suspended.
Date of representation: 1975 - 1976
Opposing counsel:
Gary Brock, District Attorney
(now in private practice)
McCombs & Brock
P. O. Box 59
Idabel, OK 74745
405-286-3363
Vester Songer, Assistant District Attorney
(now in private practice)
P. O. Box 696
Hugo, OK 74743
405-326-7575
-10-
Bur/2.Sen,dn29
734
Co-counsel :
Joe Stamper
Stamper & Burrage
P. O. Box 100
Antlers, OK 74523
405-298-3332
Case #2. Town of Wapanucka, Oklahoma v. Robert L. Laney
and his wife Evelyn P. Laney, Husband and Wife,
in the District Court of Johnston County, Oklahoma,
Case No. C-79-93;
Judge: Honorable H. Leo Austin, District Judge
(Leo Austin is now in private practice
in Ada, Oklahoma. )
Robert L. Laney and his wife Evelyn P. Laney v. Town
of Wapanucka, Oklahoma, and Oklahoma Water Resources
Board,
in the District Court of Johnston County, Oklahoma,
Case No. C-81-39;
Judge: Honorable H. Leo Austin, District Judge
(Leo Austin is now in private practice
in Ada, Oklahoma.)
In Re: Town of Wapanucka, Debtor, Chapter 9,
in the United States Bankruptcy Court for the
Eastern District of Oklahoma,
Case No. 82-00231.
Judge: Honorable George R. Inglish,
United States Bankruptcy Judge
The Town of Wapanucka, Oklahoma's water supply
was damaged when a semi carrying oil overturned in the
lake which supplied the water. The Laneys, who were
Texas residents, owned a tract of land which had
springs located on same. The Town of Wapanucka filed
an application with the Oklahoma Water Resources Board
to take the water from the springs. The only notice,
with regard to the Town's application, was published
in the Johnston County, Oklahoma, newspaper where the
springs were located. The Laneys, being Texas
residents, were unaware of the Town's application to
take the water from the springs and the water
resources board's permission to the Town to take the
spring water.
-11-
Bur/2.Sen,dn29
735
The Town of Wapanucka filed a condemnation action
against the Laneys (C-79-93) to lay a water line
across their property to connect to the springs. It
was the Town's position that the Laneys were due no
compensation for using any water from the springs
because of the Oklahoma Water Resources Board's permit
which had been granted to the Town to take water from
the springs. The commissioners' award in this
condemnation action was the sum of $5,000.00.
The Laneys then filed an inverse condemnation
action against the Town of Wapanucka, Oklahoma, and
joined as a party defendant the Oklahoma Water
Resources Board (C-81-39). It was the Laneys'
position that the granting of the water rights from
the springs to the Town of Wapanucka was
unconstitutional because the statute relied upon by
the Oklahoma Water Resources Board did not provide
adequate notice.
These two cases (C-79-93 and C-81-39) were
consolidated for jury trial. The jury awarded the
Laneys $84,000.00 and there was added to said award
pre-judgment interest of $7,337.26, plus attorney's
fees in the sum of $21,189.61.
To avoid payment of this judgment, the Town of
Wapeinucka filed a Chapter 9 bankruptcy in the United
States Bankrtupcy Court for the Eastern District of
Oklahoma. The bankruptcy judge stated that the
judgment of the Laneys could not be discharged in
bankruptcy because of the constitutional provision
that private property cannot be taken for public use
without just compensation.
The Town of Wapanucka had an action pending
against the trucking company which had damaged the
Town's water supply. After the bankruptcy court's
pronouncement, the case was settled by the Town of
Wapanucka paying the Laneys the sum of $105,000.00.
I represented the Laneys at all stages of these
cases, which included all hearings before the Court,
the jury trial and hearings in the bankruptcy case.
Dates of representation: 1980 - 1983
Counsel for the Town of Wapanucka, Oklahoma,
at the jury trial:
-12-
Bur/2.Sen,dn29
736
Doug Gabbard II
Atoka County Courthouse
4 N. Main St.
Atoka, OK 74525
405-889-2423
(Doug Gabbard is now the District Judge
for Atoka and Coal Counties.)
Counsel for the Town of Wapanucka, Oklahoma,
after the jury verdict and in the bankruptcy action:
Don L. Wyatt
Wyatt, Austin & Associates
P. O. Box 333
Ada, OK 74820
405-436-2300
Case #3. Steve W. Hayes v. Bob L. Bruton, M.D. ;
in the District Court of Bryan County, Oklahoma,
Case No. C-86-598
Judge: Honorable Joe C. Taylor, District Judge
(Judge Taylor is now on the
Court of Appeals, Tulsa Division)
Steve W. Hayes was a college student and employed
at Potter's Sausage in Durant, Oklahoma. He sustained
an on-the-job injury when he stuck a slender boning
knife in his wrist. Steve was sent by Potter's
Sausage to the company physician. Bob L. Bruton, M.D.
Dr. Bruton treated this injury. Steve filed a
malpractice action against Dr. Bruton for failure to
diagnose an injury to the ulnar nerve caused by the
boning knife. There was no offer of settlement prior
to trial. After the first day of jury trial, an offer
of $75,000.00 was rejected. The jury returned a
verdict of $800,000.00 for actual damages. After
computation of pre-judgment interest and costs, the
judgment was the sum of $1,004,998.03. Dr. Bruton
filed a Motion for New Trial, which was overruled, and
the cause was settled for the sum of $950,000.00.
I was lead counsel in the case for Mr. Hayes.
Dates of representation: 1985 - 1989
Counsel for Dr. Bruton:
-13-
Bur/2.Sen,dn29
737
Jack Thomas
Thomas, Glass, Atkinson, Haskins,
Nellis & Boudreaux
Suite 1500, 525 S. Main St.
Tulsa, OK 74103
918-582-8877
Co-counsel:
Alan B. McPheron
116 North Third
Durant, OK 74701
405-924-7300
Case #4. Barton M. Cannon v. The Rust Engineering Company,
a Foreign Corporation; Brown & Root, Inc., a
Foreign Corporation; KMW of Sweden (Karlstads
Mekanisk Werkstad of Sweden), a Foreign Corpora-
tion; and KMW (Karlstads Mekanisk Werkstad) -
Johnson, now KMW Corporation, a Foreign Corpora-
tion, in the United States District Court for the
Eastern District of Oklahoma,
Case No. 83-556-C
Judge: Honorable Frank H. Seay
United States District Judge
Barton M. Cannon was a young boy who was employed
by Weyerhaeuser Company in Valliant, Oklahoma. While
working on the No. 1 Paper Machine, he was injured.
Suit was filed against the manufacturer of the
machine, which was a foreign corporation doing
business in Sweden, as well as the engineering company
and company that constructed the plant. In order to
sue the Swedish corporation, there had to be
compliance with the Treaty of the Hague, as well as
translation of court documents to Swedish. There were
extensive depositions, including depositions of the
Swedish company in Stockholm, Sweden, which required
an interpreter. The case was settled prior to trial,
with the plaintiff receiving cash and a structured
settlement which had a seven-figure pay-out value.
The amount of such settlement cannot be disclosed by
reason of the fact that the settlement agreement
requires that it be kept confidential.
I was lead counsel in the case for Mr. Cannon and
represented him in all stages of the case.
Dates of representation: 1983 - 1985
-14-
Bur/2.Sen,dn29
738
Case #5,
Counsel for Defendant, KMW of Sweden:
John H. Tucker
Rhodes, Hieron^Tiius , Jones, Tucker & Gable
2800 Fourth National Bank Building
Tulsa, OK 74119
918-582-1173
Counsel for Defendant, The Rust Engineering Company:
Richard D. Wagner
Knight, Wagner, Stuart, Wilkerson & Lieber
233 W. 11th St.
Tulsa, OK 74103
918-584-6457
Counsel for Defendant, KMW- Johnson now
KMW Corporation:
John F. McCormick
Pray, Walker, Jackman, Williamson & Marlar
2200 Fourth National Bank Building
Tulsa, OK 74119
918-583-1366
Counsel for Defendant, Brown & Root, Inc.:
Monte Brown
Allford, Ashmore, Invester, Brown & Zellmer
P. O. Box 130
McAlester, OK 74502
918-423-3131
Co-counsel:
Jerry McCombs
McCombs & Brock
P. O. Box 59
Idabel, OK 74745
405-286-3363
Bill L. Kelley, Dwayne Henderson, and Marvin
Blubaugh, on Behalf of Themselves and Others
Who Are Similarly Situated v. Mid-America Racing
Stables, Inc., an Oklahoma Corporation; D. Wayne
Lukas; Jeffrey W. Lukas; R. Mark Geurkink; John
V. Hazleton; C. Michael Williams; and Arthur
Andersen & Co. ,
in the United States District Court for the
Western District of Oklahoma;
Case No. CIV-89-1362-A
-15-
Bur/2.Sen,dn29
739
Judge: Honorable Wayne Alley
United States District Judge
Plaintiff brought an action in connection with an
offering of common stock for violation of the state
and federal securities law. Plaintiff sought class
certification, together with damages of approximately
$4,000,000.00, plus attorney's fees and costs.
Plaintiffs claimed the Prospectus was untrue and
fraudulent. There was extensive discovery and
briefing with regard to the class certification
issue. The Court denied class certification and after
the denial the case was settled. The individual
defendants I represented did not pay any of the
settlement. The company paid the money necessary to
settle the case and it was felt the cost of settlement
was what it would cost to defend the case .
I represented the individual defendants and
participated in all aspects of the litigation.
Dates of representation: 1989 - 1990
Counsel for Plaintiff:
William B. Federman
Day, Hewett & Federman
Sixth Floor
One North Hudson
Oklahoma City, OK 73102
405-236-8800
Roger B. Greenberg
Richie & Greenberg
Tenth Floor, Summit Plaza
West Tower
12 Greenway Plaza
Houston, TX 77046
713-627-2027
Co-counsel for Mid-America Racing Stables, Inc.:
Harry A. Woods, Jr.
Crowe & Dunlevy
1800 Mid-America Tower
Oklahoma City, OK 73102
405-235-7700
-16-
Bur/2.Sen,dn29
740
Co-counsel for Arthur Andersen Company:
Eric Eissenstat
Fellers, Snider, Blankenship, Bailey
& Tippens
2400 First National Center
Oklahoma City, OK 73102
405-232-0621
Case 16. Andrea Stangl v. Steven P. Stangl;
in the District Court of Pittsburg County, Oklahoma,
Case No. D-89-219
Judge: Honorable Steven W. Taylor
Associate District Judge
Steven P. Stangl is a successful dentist in
McAlester, Oklahoma, and was sued by his wife for
divorce. I represented him in the divorce action.
There had been substantial assets accumulated during
the marriage. There were two unique questions in this
divorce action. The first was the wife's claim that
she was totally disaibled by reason of the "Yuppie Flu"
(Epstein Bar Virus), which required a considerable
amount of medical research and testimony. The second
question involves the wife's claim that her husband's
dental practice had a "good will" or "going concern"
value. The case, along with these issues, was tried.
The Court ruled that in the State of Oklahoma a dental
practice did not have a "good will" or "going concern"
value and that the wife was not disabled by reason of
her "Yuppie Flu". I represented Steven P. Stangl in
all phases of this case, including the trial.
Dates of representation: 1989 - 1991
Counsel for Andrea Stangl:
Warren Gotcher
Gotcher, Brown, Bland & Belote
P. O. Box 160
McAlester, OK 74502
918-423-0412
Case #7. Charles D. "Charley" Wilson v. AES Shady Point,
Inc., a Corporation, and Oklahoma Gas and Electric
Company, a Corporation;
in the District Court of LeFlore County, Oklahoma
Case No. C-90-185
Judge: Doug Gabbard II
District Judge
-17-
Bur/2.Sen,dn29
741
AES Shady Point, Inc., constructed a
co-generation plant pursuant to federal law in LeFlore
County, State of Oklahoma, at a cost in excess of $500
million. Pursuant to the federal law, AES entered
into a contract for the sale of all electrical power
generated by the plant with Oklahoma Gas & Electric
Company, which was the sole purchaser of power from
this plant. Plaintiff filed this action seeking to
void the contract because of alleged defects in the
proceedings before the Oklahoma Corporation Commission
to approve the contract. The facts surrounding the
contract were not in dispute, but there was a hotly
contested legal dispute as to the law that applied to
the factual situation. There was extensive briefing
and the case was set for trial and hearing with regard
to the law and its application to the facts of the
case. I argued the case on behalf of AES Shady Point
at the trial court level, as well as participating in
the briefs filed. The case was appealed to the
Oklahoma Supreme Court and then assigned to the Court
of Appeals. The trial court's decision was affirmed
by the Court of Appeals and the Oklahoma Supreme Court
denied certiorari.
Dates of representation: 1991 - 1993
Counsel for Plaintiff, Charles D. "Charley" Wilson:
Whit Pate
P. O. Box 785
Poteau, OK 74953
918-647-3200
Co-counsel with me representing AES Shady Point:
Thomas F. Golden and Frank M. Hagedorn
Hall, Estill, Hardwick, Gable, Golden & Nelson
4100 Bank of Oklahoma Tower
One Williams Center
Tulsa, OK 74172
918-588-2700
James E. Hamilton
Hamilton, Warren & Bovos
P. O. Box 660
Poteau, OK 74953
918-647-9171
Rigdon Boykin
Chadbourne & Parke
30 Rockefeller Plaza
New York, New York 10112
212-408-5100
-18-
Bur/2.Sen,dn29
742
Co-counsel for Oklahoma Gas & Electric Company:
Hugh D. Rice
Rainey, Ross, Rice & Binns
735 First National Center West
Oklahoma City, OK 73102
405-235-1356
Case #8. W. A. Gilbert v. State Farm Fire and Casualty
Company ;
in the District Court of Bryan County, Oklahoma,
Case No. C-85-414
Judge: Honorable Joe C. Taylor
District Judge
( Judge Taylor is now on the
Court of Appeals, Tulsa Division)
W. A. Gilbert's home was insured by State Farm
Fire and Casualty Company and burned. The insurance
policy issued by State Farm provided for coverage on
the home of $91,500.00, $64,050.00 for personal
property, and $27,450.00 for loss of use. Mr. Gilbert
filed a proof of loss with State Farm in the sum of
$167,500.00. State Farm denied payment on the loss,
claiming that Mr. Gilbert had employed an arsonist to
burn his home. This case was tried to a jury and the
total judgment entered in the case was for the sum of
$373,193.40, which included attorney's fees, interest
and costs. The case was appealed to the Oklahoma
Supreme Court and then assigned to the Court of
Appeals. The Court of Appeals reversed the judgment
for the emotional distress of $25,000.00, ordered a
retrial on the bad faith cause of action only, and
also reduced the attorney's fees awarded by the sum of
$10,000.00. Prior to the second trial, on the bad
faith cause of action, the case was settled for
approximately $370,000.00.
I was lead counsel representing Mr. Gilbert in
the trial court and on appeal.
Dates of representation: 1985 - 1989
Counsel for State Farm Fire and Casualty:
Bill Cathcart
Cathcart, Gofton & Stratton
2807 N. Classen Blvd.
Oklahoma City, OK 73106
405-524-1110
-19-
Bur/2.Sen,dn29
743
/
Co-counsel: /
Alan B. McPheron
116 North Third
Durant, OK 74701
Case #9. Nicor Exploration Co., v. Atlantic Richfield
Co., and ARCO Natural Gas Marketing, Inc.
in the District Court of Latimer County, Oklahoma,
Case No. C-88-97
I represent Atlantic Richfield Company ("ARCO")
and ARCO Natural Gas Marketing, Inc. ("ANGMI") in the
above lawsuit. This is a rather complex oil and gas
case which has been trifurcated for trial. A general
dicussion of each phase of the case is as follows:
Phase One: This portion of the case involved NICOR' s
claims that ARCO and ANGMI had violated the provisions
of the Oklahoma Revenue Sharing Act. NICOR is a
working interest owner with ARCO in the wells in
question. In this phase of the trial, NICOR sought
damages for gas sold from the well and violations of
the Oklahoma Revenue Sharing Act in the sum of $9.4
million. It was ARCO's contention that NICOR was not
entitled to revenue share under the Act with ARCO
because NICOR was a "contracted party". ARCO further
contended that even if NICOR was entitled to revenue
share that the only sums to which they were entitled
would be the amount of $832,000.00. It is ARCO's
position that under the federal law, NICOR' s portion
of the gas from the wells is dedicated to interstate
commerce and thereby prevents revenue sharing. This
portion of the case was tried for approximately one
week to the Court and the Court found that NICOR was
entitled to judgment in this phase of the case for the
sxim of $832,000.00, plus accounting fees of
approximately $145,000.00. The trial court refused to
treble damages under the Revenue Sharing Act, but did
treble the accounting fees. This portion of the case
was tried in April of 1992, by myself and co-counsel.
Jay Brandt.
Phase Two: This portion of the case was tried for
approximately one week in August of 1992. ARCO and
ARKLA, Inc., had entered into certain settlement
agreements in 1987 and 1989. It was NICOR' s position
that, as a working interest owner in the wells, it was
entitled to a portion of the settlement proceeds which
settled issues regarding the gas purchase contract
Bur/2. Sen, dn29
-20-
744
between ARCO and ARKLA. NICOR was seeking damages in
the sum of $34.7 million. The trial court ruled for
ARCO and ANGMI in this phase of the trial and NICOR
was not awarded any damages. This phase of the case
was tried by myself and Jay Brandt.
Phase Three: Phase Three of the case is what has been
designated as the fraud cause of action in connection
with ARCO's acquisition of minerals in the gas field
prior to notifying NICOR of the discovery. The Court
sustained ARCO's Motions for Summary Judgment on these
claims by NICOR. This phase of the case was handled
by myself. Jay Brandt and Eugene Kuntz.
All three phases of this case are presently on appeal
in the Oklahoma Supreme Court.
Dates of representations: 1991 - 1994
Counsel for NICOR Exploration:
Danny P. Richey and
Terry J. Barker
Brune, Pezold, Richey & Lewis
700 Sinclair Building
Six East Fifth Street
Tulsa, OK 74103
918-584-0506
Co-counsel:
Jay Brandt
George Kolb
Wilson, Elser, Moskowitz,
Edelman & Dicker
3401 Renaissance Tower
1201 Elm Street
Dallas, TX 75270
214-698-3831
Case #10. Moffett & Brewster, John Brewster, Trustee, and
Robert Moffett, Trustee, vs. Atlantic Richfield
Company, ARCO Natural Gas Marketing, Inc.,
Anadarko Petroleum Corporation, NICOR Exploration
Company, Harry V. Allison, John T. Oxley, John C.
Oxley, Roger S. Randolph, Individually and as
Trustee for Mary Jane Tritsch and Thomas E. Oxley,
Frank M. Engle, as Trustee for Thomas E. Oxley and
Mary Jane Oxley, and Marjorie Ruth Soper, as
Executrix of the Estate of R. L. Soper,
in the District Court of Latimer County, Oklahoma,
Case No. C-90-72
-21-
Bur/2. Sen, dn29
Judge :
745
Honorable Joe C. Taylor, District Judge
(Judge Taylor is now on the
Court of Appeals, Tulsa Division)
Robert Moffett and John Brewster are two lawyers
from Houston, Texas. Atlantic Richfield Company
("ARCO") made a sxibstantial gas find in Latimer
County, Oklahoma, in the early part of 1988. Moffett
& Brewster, with financial backing from some very
prominent corporate leaders and lawyers in Houston,
Texas, obtained "top leases" in a substantial portion
of this gas field.
After the top leases were obtained,
Brewster filed an action for the following:
Moffett
1) to cancel the ARCO leases by reason of the
fact that in earlier years there had been periods of
time when production had ceased for sixty (60) day
periods;
2) damages for breach of
to market;
the implied covenant
3) damages for breach of the Oklahoma Revenue
Sharing Act;
4) damages by reason of the
ARCO/ARKLA settlement agreements.
1987 and 1989
The damage claim was in the sum of approximately
$200 million and the value of the leases which Moffett
& Brewster sought to cancel equaled or exceeded the
damage claim. Moffett & Brewster alleged that the
total damages sought in the action were-, in excess of
$1 billion.
The case was tried to the Court for five weeks
and judgment was rendered for the defendants. Moffett
& Brewster recovered nothing.
The case was appealed to the Oklahoma Supreme
Court. After the appeal was filed, the case was
settled by ARCO paying Moffett & Brewster a portion of
their litigation expenses and attorney's fees.
I was lead counsel for Atlantic Richfield Company
and ARCO Natural Gas Marketing, Inc.
Dates of representation: 1991 - 1993
-22-
Bur/2.Sen,dn29
746
Counsel for Moffett & Brewster:
A. Lee McLain
1100 Louisiana, Suite 1770
Houston, TX 77002
713-650-6300
Warren Gotcher
Gotcher, Brown, Bland & Belote
P. O. Box 160
McAlester, OK 74502
918-423-0412
Joseph D. Jamail
Jamail & Kolius
500 Dallas, Suite 3300
Houston, TX 77002
713-651-3000
Co-counsel for Anadarko Petroleum:
Mark D. Christiansen
Crowe & Dunlevy
1800 Mid-America Tower
20 North Broadway
Oklahoma City, OK 73102
405-235-7700
Co-counsel for NICOR Exploration:
Danny P. Richey and
Terry J. Barker
Brune, Pezold, Richey & Lewis
700 Sinclair Building
Six East Fifth Street
Tulsa, OK 74103
918-584-0506
Co-counsel for Soper estate:
Robert S. Thompson
Pool, Thompson, Coldiron, Blankenship
& Vincent
511 Couch Drive, Suite 202
Oklahoma City, OK 73102
405-235-0484
Co-counsel also representing ARCO:
Eugene Kuntz
P. O. Box 720370
Norman, OK 73070-4274
405-321-5203
-23-
Bur/2.Sen,dn29
747
George H. Kolb and
Jay A. Brandt
WILSON, ELSER, MOSKOWITZ ,
EDELMAN & DICKER
3401 Renaissance Tower
1201 Elm Street
Dallas, TX 75270
214-698-3830
19. Legal Activities; Describe the most significant legal
activities you have pursued, including significant
litigation which did not progress to trial or legal matters
that did not involve litigation. Describe the nature of
your participation in this cfuestion, please omit any
information protected by the attorney-client privilege
(unless the privilege has been waived).
During 1976, 1977 and part of 1978, I was general counsel
for David Gardner, Principal Chief of the Choctaw Nation,
and the Choctaw Nation of Oklahoma. This consumed a
considerable amount of my time during this period of time.
I represented David Gardner in his official capacity as
Principal Chief of the Choctaws in an action entitled Noel
Morris, et al. v. Cecil Andrus, in His Official Capacity as
Secretary of the Interior, et al., filed in the United
States District Court for the District of Columbia. I
appeared in Washington, D.C., before Judge Richey for
argument on motions and briefs filed on behalf of Chief
Gardner. Chief Gardner died, during his tenure as Chief,
and I did not conclude this litigation. As a result of
this case, the Choctaws adopted a new Constitution.
The State of Oklahoma did not have Uniform Jury
Instructions until the Oklahoma Supreme Court established
the Oklahoma Supreme Court Committee for Uniform Civil Jury
Instructions. I served on this committee. It is felt that
by having uniform instructions, there have been fewer
appeals involving jury instructions. These instructions
have also been of great assistance to the trial court
judges because of less time having to be spent on how the
jury is to be instructed in civil cases. I am presently
serving, by appointment from the Oklahoma Supreme Court, on
the standing committee to monitor, update and revise these
instructions .
-24-
Bur/2.Sen,dn29
748
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated receipts
from deferred income arrangements, stock, options,
uncompleted contracts and other future benefits which you
expect to derive from previous business relationships,
professional services, firm memberships, former employers,
clients, or customers. Please describe the arrangements
you have made to be compensated in the future for any
financial or business interest.
If selected as a federal judge, the income, other than
my salary I would have, would be from the following:
a) I have an Individual Retirement Account ("IRA")
and a retirement account with and administered by the
American Bar Association. The assets in these retirement
accounts are for retirement and cannot be withdrawn prior
to retirement without subsantial penalty. Hopefully, the
assets in these retirement accounts will continue to
increase in value and generate income. The assets in these
accounts consist of bank stock, cash, promissory notes,
minerals, real estate and publicly traded stocks.
b) Rental income from property owned. I presently
receive $18,887,64 per year as rental income from my law
firm for rental of the portion of the law office building I
own. I also receive probably less than $1,200.00 per year
for my portion of rental income for other rental property.
This other rental property may not stay rented, so it is
impossible to state the exact amount of rental income I may
receive. With regard to the rental from the law office
building, if I sold my interest to any other member of the
firm, this rental income would stop.
c) Income from oil, gas and other minerals of
approximately $1,000.00 per year.
d) Interest income from promissory notes of less
than $1,000.00 per year.
e) Annuity income of $48.00 per month, which is
guaranteed through the year 2005, with lump sum payments as
follows:
$ 8,000.00 - 10-1-95
16,000.00 - 10-1-10
20,000.00 - 10-1-15
24,000.00 - 10-1-20
40,000.00 - 10-1-25
-25-
Bur/2.Sen,dn29
749
f) Members of my family own controlling interest in
the First National Bank at Antlers, Oklahoma, with a branch
bank in Atoka, Oklahoma. I serve as a bank director in the
First National Bank at Antlers, Oklahoma, and receive bank
director's fees of approximately $5,000.00 per year. I
will resign as a director upon confirmation.
g) The law firm of Stamper & Burrage consists of two
partners: myself and Joe Stamper. Upon confirmation, the
law firm will be dissolved. Joe Stamper will purchase my
interest in the personal property. The fees due will be
collected on pending cases and distributed to Joe Stamper
and myself. Joe Stamper will rent my portion of the law
office building or purchase my interest in the law office
building.
2. Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the
categories of litigation and financial arrangements that
are likely to present potential conflicts of interest
during your initial service in the position to which you
have been nominated.
I believe there would be a potential conflict of
interest in any case (1) that my law firm was involved in;
( 2 ) that involved ciny former client of myself or my law
firm; (3) that involved any matter in which I might have a
financial interest; and (4) that involved a family member
or close personal friend. There could possibly be other
situations that could present a potential conflict of
interest. I would strictly follow the Code of Judicial
Conduct in this and all other areas.
In order to determine whether there is any potential
conflict of interest, I would examine the case or take such
other measures to determine the parties and legal counsel
involved in the case, as well as the nature of the case.
In the event there was any conflict of interest, I would
disqualify from the case.
3. Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during
your service with the court? If so, explain.
No.
-26-
Bur/2.Sen,dn29
750
4. List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more. (If you prefer to do
so, copies of the financial disclosure report, required by
the Ethics in Government Act of 1978, may be substituted
here . )
See attached Financial Disclosure Report.
5. Please complete the attached financial net worth statement
in detail. (Add schedules as called for.)
6. Have you ever held a position or played a role in a
political campaign? If so, please identify the particulars
of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
I have contributed to and supported various political
candidates over the past twenty-four (24) years, however, I
have never held a position or played a role, other than
contributing and supporting, in a political campaign.
-27-
Bur/2.Sen,dn29
751
III. GENERAL (PUBLIC)
1. An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some time to participate in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances
and the amount of time devoted to each.
a) I, as well as other members of my law firm, have
always spent time advising, as well as representing in
litigation, individuals who were not able to pay legal
fees. This ranges from representing individuals who can
pay no fee at all to those that might be able to pay only a
portion of the fee. During the time I have practiced law,
I have represented many women, most of whom had children,
in divorce actions where there was physical abuse and/or an
unwillingness to support the family.
b) Boyce Ray Fobb was charged with First Degree
Murder for the killing of his wife. Mr. Fobb was a severe
alcoholic and during his life had sustained some severe
head injuries. I represented Mr. Fobb through two jury
trials and one appeal. A plea agreement was initially
reached with the District Attorney's office for a 15-year
sentence. After the election of a new District Attorney,
the plea agreement was backed out of by the District
Attorney's office. A motion to enforce the plea agreement
was filed and sustained by the trial court. This was
appealed to the Court of Criminal Appeals, which reversed
the trial court. A jury trial was held to determine
whether Mr. Fobb was competent to stand trial and the jury
found he was. The murder case was thereafter tried to a
jury in 1988. Mr. Fobb was convicted of Second Degree
Murder and sentenced to 35 years. The appeal of the case
was handled by the public defender's office and the case
was affirmed. Mr. Fobb was indigent and could not pay any
attorney's fees or fees for experts. No application was
ever filed for the nominal fee the court fund would pay. I
felt that Mr. Fobb was not guilty of First Degree Murder
and wanted to help him.
c) I presently spend a considercible amount of time
serving on the Trial Panel of the Professional Responsi-
bility Tribunal of the Oklahoma Bar Association. Each
trial panel consists of three individuals chosen from the
members of the Professional Responsibility Tribunal and
hear cases involving complaints filed by the General
Counsel's Office of the Oklahoma Bar Association against
lawyers. After the hearing, the panel makes a written
recommendation to the Oklahoma Supreme Court, as to what,
if any, discipline should be imposed against the lawyer
-28-
Bur/2.Sen,dn29
752
being tried. The panel members receive no fees for the
time spent on these cases.
2. The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a
judge to hold membership in any organization that
invidiously discriminates on the basis of race, sex, or
religion. Do you currently belong, or have you belonged,
to any organization which discriminates — through either
formal membership requirements or the practical
implementation of membership policies? If so, list, with
dates of membership what you have done to try to change
these policies?
No.
3. Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts?
Yes.
If so, did it recommend your nomination?
Yes.
Please describe your experience in the entire judicial
selection process, from beginning to end (including the
circumstances which led to your nomination and interviews
in which you participated) .
I submitted my application to the commission and requested
that various individuals send recommendation letters to the
commission. I was interviewed by the entire commission.
The commission submitted three (3) names to Senator Boren.
I was interviewed by Senator Boren. In connection with my
nomination, I have been investigated by the Federal Bureau
of Investigation, the Justice Department and the American
Bar Association.
4. Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
interpreted as asking how you would rule on such case, issue, or
question? If so, please explain fully.
No.
5. Please discuss your views on the following criticism
involving "judicial activism."
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
subject of increasing controversy in recent years. It has
-29-
Bur/2.Sen,dn29
753
become the target of both popular and academic criticism
that alleges that the judicial branch has usurped many of
the prerogatives of other branches and levels of
government. Some of the characteristics of this "judicial
activism" have been said to include:
a. A tendency by the judiciary toward problem-solution
rather than grievance-resolution;
b. A tendency by the judiciary to employ the individual
plaintiff as a vehicle for the imposition of
far-reaching orders extending to broad classes of
individuals;
c. A tendency by the judiciary to impose broad,
affirmative duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
e. A tendency by the judiciary to impose itself upon
other institutions in the manner of an administrator
with continuing oversight responsibilities.
The role of the federal district courts should be to
determine the law in each case and apply that law to the
case before it. The federal district courts should follow
the law as set forth by Congress, the circuit courts and
the United States Supreme Court. The federal district
courts are courts of limited jurisdiction and each case
should be examined to determine if jurisdiction is proper,
whether there is standing and if the issues are ripe for
determination. The judicial branch, under the separation
of powers doctrine, should not attempt to legislate.
One of the main concerns of the federal district
courts should be to determine the issues before it and make
sure the docket is kept up to date.
-30-
Bur/2. Sen, dn29
754
FiNANCiAL DISCLOSURE REPORT S^H-Hr^-
(5 U.S.C.A. App. 6, S5101-112]
1. F4£iion Haportlng (Laer name, tiia:, Diddla initial)
Billy Michael Burrage
2. Court or Organization
United States District Court for
the Eastern, Northern 6 Western
Districts of Oklahoma (Roving)
3. Dat« of Report
3-9-94
4. Tltla (Anlcla 111 judges Indicate active or
senior atatus; Magiatrate ludgea indicate
full- or part-time)
United States District Court for the
Eastern, Northern S i^estern Districts
of Oklahoma (Roving)
5. Report Type (checlc appropriate type)
X NOTlnatlon, Date 3-9-94
Initial Annual Pinal
6. Reporting Period
1-1-93 to 3-9-94
7, chaBbera or Office Addreas
Box 100
Antlers, OK 74523
405-298-3332
6. On the baaia of the Inforaation contained in thia Report, it
is. In vy opinion, in coapliance with applicable lawa and
regulations
Raviewlnq Officer Signature
IMPORTANT NOTES: 77ie instructions accompanying this form must be followed. Complete all parts,
checking the NONE box for each section where you have no reportable iorormation. Sign on last page.
I. POSITIONS. (Reporting individual only; see pp. 7-8 of Instructions.)
POSITION NAME OF ORGANIZATION/ENTITY
n
NONE (Ho reportable poaitiona)
SEE ATTACHED STATEMENT
II. AGREEMENTS. (Reponing individual only, see p. 8-9 of Instructions.)
OATE PARTIES AND TERMS
I NONE (No reportable agreeaents)
The law firm of Stamper & Burrage consists of two partners: myself and
Upon confirmation jpe Stamper. The law firm will be dissolved. Joe Stamper will purchase
my interest in the personal property. The tees due will Be coiiectea
on pending cases and distributed to Joe Stamper and myself. Joe Stamper
will rent my portion ot the law ottice building or purcnase my inieiest
in the law office building.
III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 9-12 of Instructions.)
n
DATE
(Honoraria only)
SOURCE AND TYPE
GROSS INCOME
(yours, not spouse's)
NONE (Ho reportable non-inveataent Incoae)
Professional fees from Stamper, Otis & Burrage
1-1-93 to 3-9-94 and Stamper & Burrage
1-1-93 to 3-9-94 Director's fees - First National Bank at Antlers, OK
1-1-93 to 3-9-94 Teacher/Principal - Antlers Public Schools, Antlers, OK
$
671
322.88
s
5
150.00
$
(S)
$
s
755
FINANCIAL DISCLOSURE REPORT (confd)
Kmmn ot Parson Reporting
Billy Michael Burrage
Date ot Report
3-9-94
IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.
n
(Includes those to spouse and dependent children; use the parentheticals "(S)" and "(DC)" to indicate reportable
reimbursements and gifts received by spouse and dependent children, respectively. See pp.13-15 of Instructioas.)
SOURCE DESCRIPTION
NONE (No Buch reportable relmbureoBentB or gifts)
Fvpnipr F.xpmpr .
V. OTHER GIFTS, (includes those to spouse and dependent children; use the (wrentheticals "(S)" and '(DC)" to
indicate other gifts received by spouse and dependent children, respectively. See pp.l5-I6 of Instructioiis.)
n
SOURCE DESCRIPTION VALUE
NONE (SO eucS reportable gift*)
None ^ 5_
$
VI. LIABILITIES, (includes those of spouse and dependent children; indicate where applicable, person responsible
for liability by using the parenthetical "(S)" for separate liability of spouse, "(J)" for Joint liability of reporting
individual and spouse, and "(DC)" for liability of a dependent child. See pp.l6-18 orlnstructions.)
CREDITOR DESCRIPTION VALUE CODE*
NONE (HO reportable llabllltlaa)
1 , ,
Helen Thompson Note and First Mortgage on real estate J
Joe Stamper and Johnnie Lee Stamper I co-signed a note for my brother and ^
sister-in-law to build a home. The
note is secured by a first mortgage
on their home. (This is a contingent
liability, the value of the home
exceeds the debt.)
.■,-S.'JZ C03ES: J - 115,000 or loss K - 515,001 to 550,000 I, ' 550,001 to 5100,000 K - 5100,001 to 5250,000
N '^ 5250,001 to 5500,000 0 " 5500,001 to 51,000,000 P = Koro than $1,000,000
756
FINANCIAL DISCLOSUKH REPORT (conl'd)
Nose of Parson Reporting
Billy Michael Bur rage
Date oC Report
VII. INVESTMENTS and TRUSTS -- income, value, transactions, onciudes those or spouse
and dependent children; see pp. 18-27 of instructions.)
PMtcription of Assaca
"■' . :" f (Including truat aaaata*
Indicata, Mhara appllcabia, onniar of
ttia aaaai by uajuig rlia paranthaLlcal
*{J)" for joint ownaxBhlp of report-
ing Individual and apouse, "(S)* for
••pazata ovnarablp by apoiiaa. (DO*
Cor omarani; by a«p*ndaat cdlld.
Place "IX)' after each aaaet
exeapt Iroai prior dlacloaura.
B.
Income
durinc
reporting
period
c.
croaa value
at end of
reporting
period
D.
Transactlona during reporting period
(1)
Aat.,
Code'
lA-B)
(2)
Type
'Si?:;
rent or
int.)
(1)
Value,
Code'
(J-P)
12)
Value
Method.,
Code-*
(e-W)
,«ie
b4;;'.iii,
tlon]
If not. axespc Iron dlaclosur* 1
Month.
D*y
(3)
Valo. ,
Code'
(J-P)
(*)
(»-B)
Ideatlty of
buYer/aellex
(It private
traseactloB)
Exempt
NONE (Ho reportable
Incoae, aeaeta, or
trannarrlnnal
ilndividual Retirement Acct.
First National Bank, Antlers
D
int. &
T, U,
R(1992
"
liv.
M
-1993 SI'
1,000
^American Bar Association
Members Retirement Proeram
E
iiv.
M
T
..
^Law Office Building
Antlers. Oklahoma
E
rent
M
W
*l/2 interest in duplex
Antlers. Oklahoma
A
rent
J
W
'1/2 interest in note re-
rpivahlp from Brad Miller
C
int. &
jrin.
,1
amt .
owed
..
'1/2 interest in vacant lot
Antlers, Oklahoma
n
3ne
J
K
"
'1/2 interest in house/lots
Antlers, Oklahoma
n
3ne
J
W
"
e2/b interest in lUU-acre
tract of land
n
jne
J
W
••
'1/2 interest in 20 acres
neai;- Antlers, Oklahoma
n
)ne
J
W
101/3 interest in 20 acres
in Hugo, Oklahoma
r
one
J
W
■■
"1/25 interest in 320 acres
near Antlers. Oklahoma
r
one
J
W
■■
1^. S. Savings Bonds
(J) and (DC)
B
int.
K
T
"
13
Michael Burrage Annuity
A
int. 6
prin.
K
T
"
'^Minerals in Pushmataha, Gar
vin. Love & Washita Counties
B
rovalt\i
J
W
■■
"Deposits in Bank (J)
First National Bank, Antlers
A
int.
M
T
"Promissory Note/First Mort-
gage on house from Ashley
I'and Lisa Harmon; note sold
E
int. &
prin.
SO
SO
"Michael Burrage, Inc.
Physical assets
nc
ne
L
u
■■
"American Express, Privilege
Asset Acct. - closed out
d
D
int. i
prin.
$0
SO
■•
Joj lots located in Antlers,
Oklahoma - sold
E
sales
price
SO
SO
"
B=S!.00
to S2,iOO C'i2,501 to 5,000 D~S^,001 to $16,000
(Se« Col. Bl i D4) »Slb,:t01 to S50
,000 F-5!)0,0C
1 to 5'.?P,0'.'0 ';»'!00,Cu: to s:.0O0.OC0 H-r.c.re than 51.000,000
2 Value Codea: J-S:5,0C0 or leoa K"S15,Cj: '.o ISO.CCO L'S'j3,?01 to Sl&O.OCD K-S100,e01 to STSO.OOO 1
IS?*e Col. CI t D3) S-S250.&01 to S500.000 O-J^[.0,CUl vn 5 * , ''''0. OIJ:! ?-r.-:ri Lhar. §'.t'OO.COO i
3 Value Method Codoa: Q-'Apjirolsal J^'C-SDt (reai cr.t.ito i>-'.;' .". .".rsecsBcir
{See Col. C2) U-30ok Value V-Cthor --ifct.Tatad
T-Ci,eh/Karl(ot 1
!
757
FINANCIAL DISCLOSURE REPORT (cont'd)
Naro of Person Reporting
Billv Michael Bur rage
Date of Report
3-9-94
Vll. INVESTMENTS and TRUSTS -- income, value, transactions.
and dependcDt children; see pp. 18-27 of Instnictions.)
(Includes tbose of spouse
t Deecrlptlon of ^aaeta
(Xacluding txuat aaaet^)
Indicate, ^hmrm appUcable, om\*r of
the aaaet by ualag the parenthetical
"(J)" for joint ownarahlp of report-
ing Indiviaaal and apouae, tSl" for
aeperate o^meraUlp by apouae. MDC)-
forotfoexahlp by dependent child.
Piece -tX)" after Mch,eae«t
axe^t trim prior dlscloaure.
B.
Incoae
during
Croas valoe
at end of
0.
Traaaactlone during reporting period
ID
(»-B)
12)
'ST:
reac or
Int.)
(1)
Valoe,
Code'
(J-P)
(21
Value
Methods
Code-"
(O-W)
bny.aaLl,
merger/
If not exempt froa dlacloaura |
4Jt.:l
Honth-
D«y
(3)
Value?
Code''
(J-PJ
(«>
Calni
Code^
(»-B)
(It private
traseectioD)
NONE (Mo reportable
iDCoaa, aaeeta, or
trensactlona )
I 1/8 interest in au acres
near Antlers, Oklahoma
no
ne
J
w
Exempt
2 1/2 interest in house in
3 1/4 interest in 150 acres
near Antlers, Oklahoma (S)
♦Teachers Retirement Account
State of Oklahoma (S)
5 1/3 interest in Promissory
Nnrp/Set-iiritv Aereement from
'Randy Lohre - paid (S)
7
e
9
10
11
12
13
14
15
16
17
18
19
20
1
1 Incom/Galn Codes: A-51,000 or leas B=S1,001 to S2.5C0 C=i:,;01 to 5,0
ISoe Col. Bl ( D4) E-S15,001 to S50.000 F-S50.001 to SIOCOOO C.!:n0.nn' -r. '.
CO
1 .mo .r"
00, ^c.
"30, C ;Q
D=S5.001 to 515,000
^ (i-tTirw rh«n si.oon.nno
2 Valua Coded: J«S15,000 or less K=S15,001 to 553. OCO L.S5D.0C1 to 51
[See Col. CI fi 03) H-S250.0C1 to $500,000 O-5500.001 to Sl,0C3,0CO ? = ;'-:t t^ian S.,
3 Value Method codea: Q-.!.ppraisal R-Cost (real estate or.ly; o-;.ssc3S=i..:;t .-L-sn/narnoi.
(See Col. C2) U-Book Value v-other w^^s-.-Mte-
758
FINANCIAL DISCLOSURE REPORT (cDnl'd)
Kane of Person Roporting
Billy Micliacl Barrage
Dato of Report
■j-st-y;
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (indicate pan of Report.)
IX. CERTIFICATION.
In compliance with (he provisions of 28 U.S.C. $ 435 and of Advisory Opinion No. S7 of the Advisory Committee on
Judicial Activities, and to the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudicatory
funaion in any litigation during the period covered by this report in which I, my spouse, or my minor or dependent children
had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I certify ibal all information given above (including information pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete lo the best of my knowledge and belief, and that any information not reported was
withheld because it met applicable statutory provisions permitting non-disclosure.
I further certL'y that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.C^ app. 7, § 501 et. seq., 5 U.S.C $ 7353 and Judicial Conference
regulations.
Signature
NOTE: ANY INDIVIDXJAL WHO KNOWINGLY
MAY BE SUBJECT TO CIVIL AND CRIMINAL SAN
Date
3-9-9A
ILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
ONS (5 U.S.CA APP. 6, § 104, AND 18 U.S.C i 1001.)
FILING INSTRUCTIONS:
Mail
signed original
and 3 additional
copies lo:
Judicial Ethics Committee
Administrative Office of the
United States Courts
Washington, DC 20544
759
BILLY MICHAEL BURRAGE
POSITIONS.
1. Partner
2.
Member by Blood
3.
Member
4.
Member
5.
Member
6.
Trustee
7.
Trial Panel
Member
8.
Member
9.
Member
10.
Member
11.
Member
12.
Fellow
13.
Member
14.
Director
15.
Part Owner in
Real Estate with
16. Part Owner in
Real Estate with
Stamper & Burrage Law Firm,
Antlers, Oklahoma
Choctaw Indian Tribe of Oklahoma
Oklahoma Bar Association
Pushmataha County Bar Association
Oklahoma Trial Lawyers Association
Oklahoma Bar Foundation
Professional Responsibility Tribunal,
Oklahoma Bar Association
Oklahoma University College of Law
Association
Standing Committee appointed by the
Oklahoma Supreme Court -
Oklahoma Uniform Jury Instructions
American College of Trial Lawyers
American Bar Association
American Bar Foundation
American Trial Lawyers Association
First National Bank at
Antlers, Oklahoma
Herbert Rowland, M.D. (Dr. Rowland and
I each own a 1/2 interest in a vacant
lot and a rent house in Antlers,
Oklahoma. )
Foy Crockett. (I own a 1/3 interest and
Foy Crockett owns a 2/3 interest in a
20-acre tract of land in Hugo,
Oklahoma. )
Bur .Pos,dn28
-1-
760
17. Part Owner in
Real Estate with David Smith. (Mr. Smith and I each own
a 1/2 interest in a 20-acre tract of
land near Antlers, Oklahoma, a duplex
in Antlers, Oklahoma, and a Note and
First Mortgage from Brad Miller in the
approximate amount of $4,000.00.)
18. Part Owner in
Real Estate with Joe Stamper and Johnnie Lee Stamper
Trust. (The law offices of Stamper &
Burrage consist of two buildings, side
by side, with an adjoining wall and is
located in Antlers, Oklahoma. I own
one of these buildings and the other
building is owned 2/5ths by myself and
3/5 by Joe Stamper. Further, I own a
2/5 interest in a 100-acre tract and a
1/25 interest in a 320-acre tract with
the remaining interest in these tracts
being owned by Joe Stamper and the
Johnnie Lee Stamper Trust. Joe Stamper
is my law partner and his wife is
Johnnie Lee Stamper. )
19. Part Owner in
Real Estate with Alan McPheron. (Mr. McPheron and I
each own an undivided 1/2 interest in
a 40-acre tract of land in Bryan County,
Oklahoma. )
Christopher Godlove Education Trust.
Amanda Godlove Education Trust.
Joe and Johnnie Lee Stamper
Life Insurance Trust.
20.
Trustee
21.
Trustee
22.
Trustee
-2-
Bur .Pos,dn28
761
?rs-.\.\Cl\L STATENCNT
N't! V,ORTH
BILLY MICK.AEL ar.c CAROLYi; ALETH-A BUKR.-.CE
Provide i complete, correni Pj^ircliJ r.et worth suwrnern which iicmiicj Ln dcuU
all ajsf u (IncluJiTg bini accounu, rwJ es'-ii«, securidcs, trusii, mvestmenis, and oLher rLna.nciiJ
holdings) ail UabUides (Including d^bu, monjajcs, loans, lad other fLni,nciiJ obUjadons) of
yourself, your spouse, and oiher Lmmediaii rr.embers of your household.
ASSETS
LLKBUJ\UJi
Cuh on bAnd ui-l in bu'.lj
109
504
00
Sole4 p*yib'.c io b4i'\i3 - Mcur od
U.S. Govcmaenl lecundts-.^icf
ichcdult Series E & EE Bonds
23
731
00
Nolij piyibli lo bA;'i3-upJ^^x-t4
LirLcd >«OJ^6a-#4d jchrdjlc
Nolti piyiblj to rt-'iiiva
TJ-Jitt£4 »*CLan(ic».-»dd 3ch(dj74
NoLej pi)ii)l< to oiitn
AcccunLj L-^d nolit rt-:«tviblc;
AccounU fc/>4 \nlh (Ju«
Dy« from rdalivri uid frie/iii
UnpiJd L^cont lu
Dye from olheii
CAhtj Qjipijd lu i.->d inUrtd
E>oubrful
ReU C4U:c 0"»-7itd.-iJd jch«lij!e
See aticached schedule
A20
450
00
ChL2eJ piortji^ej And oLS<r L'trj piy-
0 J^til ttuLc mor\tncx receW*hV«
3
000
00
Ohtr debu-i;*mlz*;
D Autor L-.d ocAer pcnoonT property
67
000
00
Helen Thompson-Rene house
7
000
00
1 Cuh vUoe-L/c i/isu.-Lnc«
1 -
3
500
00
Ov-Ser »jj:t3-i-/miLi: Annuity value
18
000
00
Michael Burrage Rollover IRA
XirhsPl Burraee ABA Retire. Ac<
211
t. 179
00
/
Boat and boat slip improvement
325
000
00
Michael Burraee, Inc.
125
000
00
ToUj LiibOilirt
7
000
00
Aletha Burrage Teacher's Retire
19
873
00
Net Worti
1,498
983
Ojl
1 Total Aiictj
1,505
983
00
TotjJ Uibilidti lM rjct ■fc^r'^
1,505
983
nn
CO.VTINCENT UAJBtUTIES
CENTRAL I>TOR>UTION
Aj todo/fctj, comaicj' or gvaxalor
Spp attached schedule
Alt any uvt'j plcd;td? (Ail kKoJ.
^■) rent house
7
500
00
Oo Ifiits c conCiirLi
A/t you <i:fajdAnI ]r. ir.y (CJU « lejO
ixoofu? Yes
/^n'l "^i-ai-o
HiYt you ctf Ij^o biAiruptc,? ^'o
pAv?:?onfft'?tae^fe.°n.".^S^=< D^P°^i
s
?73
1?0
nn
O-Jxr spwUJ debt
._ y-
i.' The suit has been dismls
to the Oklahoma Supreme
sed by the Trial Court and is on appeal
Court.
Pase 1 of
;icl Stnteinent
762
MB/dn
Real Estate Owned
Home $ 175,000.00
Office Building 157,000.00
One (1) lot. Wood Addition 36,000.00
One-half (1/2) interest
Woody Pace lot 4,000.00
One-half (1/2) interest
Gladys Booker house 20,000.00
One-half (1/2) interest
in duplex 9,000.00
One-half (1/2) interest
in Helen Thompson house 7,500.00
One-half (1/2) interest
in 20 acres 2,000.00
Two-fifths (2/5) interest
in 100 acres 8,000.00
One-twenty-fifth (1/25)
interest in 320 acres 2,500.00
One- third (1/3) interest
in 20 acres 6,700.00
Minerals 8,500.00
One-fourth (1/4) interest
in 150 acres 11,250.00
$420,450.00
Page 2 of 3 - Financial Statement
BUR.FIN,dn27
763
MB/dn
Contingent Liabilities
My brother and sister-in-law built a new home at a
cost of approximately $250,000.00. They borrowed
$200,000.00 of this amount. I signed their note so
they could obtain a favorable interest rate and borrow
the money from my law partner, Joe Stamper. This note
is payable at $2,500.00 per month and they have made
all the payments. The balance on the note is
approximately $132,000.00 and is secured by a first
mortgage on the home.
When the money in my Rollover IRA and ABA Retirement
Account is withdrawn, it will be subject to federal
and state income taxes;
I have made federal income tax deposits of $226,100.00
and state income tax deposits of $47,020.00 for the
tax year 1993. This does not count withholdings for
state and federal income taxes made from my wife's
payroll check as Principal at the Antlers, Oklahoma,
elementary school. My 1993 income tax returns have
not been prepared, but my accountant feels I have made
enough tax deposits to pay my 1993 federal and state
income taxes .
Page 3 of 3 - Financial Statement
BUR.FIN,dn27
764
UNITED STATES SENATE
Questionnaire for Judicial Nominees
I. Biographical Information (PUBLIC)
1. Full name (include any former names used.)
Vanessa Diane Gilmore
2. Address: List current place of residence and office
address (es) .
Vickery, Kilbride, Gilmore & Vickery
2929 Allen Parkway, Suite 2770
Houston, Texas 77019
1211 Post Oak Park Drive
Houston, Texas 77027
3. Date and place of birth. «
St. Albans, New York
October 26, 1956
4. Marital Status (include maiden name of wife, or husband's
name) . List spouse's occupation, employer's name and business
address (es) .
Single.
5. Education; List each college and law school you have
attended, including dates of attendance, degrees received,
and dates degrees were granted.
Hampton University
Hampton, Virginia 23668
Dates of Attendance - 1973 to 1977
B.S. Highest Honors - May, 1977
University of Houston College of Law
4800 Calhoun
Houston, Texas 77004
Dates of Attendance - September, 1979 to December, 1981
J.D. - December, 1981
6. Employment Record: List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or
employee since graduation from college.
765
Vickery, Kilbride, Gilmore & Vickery - Professional
Corporation, however, I have had a partnership arrangement
since April, 1987 (and predecessor firms - Vickery & Kilbride
and Vickery & Webb) . Except for a brief period of time in
late 1985 and early 1986, I have been employed by this firm
since August, 1981. Attorney - general civil litigation
practice.
Sue Schecter & Associates - (currently Martinez & Downs) ;
October, 1985 to April, 1986 - General civil litigation
practice including defense of personal injury and business and
commercial cases.
University of Houston College of Law - Spring, 1984 - I worked
as an Adjunct Professor of Law teaching first year legal
research and writing.
1/81 to 8/81 - U.S. Attorney's Office, Houston, Texas. Law
Clerk. Responsibilities included preparing memoranda,
motions, complaints and briefs in the Land Division.
1/80 to 12/80 - National College of District Attorneys;
Houston, Texas. Research Assistant.
9/79 to 12/79 - University of Houston law library; Library
Assistant
1977-1979 - Foley's Department Store, Houston, Texas.
Assistant Buyer/Group Sales Manager. Various responsibilities
in women's ready-to-wear including buying blouses, sweaters,
swimwear; and supervision of up to twenty-five employees.
7. Military Service: Have you had any military service? If so,
give particulars, including the dates, branch of service,
rank or rate, serial number and type of discharge received.
No.
8. Honors and Awards; List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
Hampton University - Four Year Academic Scholarship,
Recognized in Who's Who Among Students in American Colleges
and Universities 1976-1977, Member Alpha Kappa Mu Honor
Society
1989 - Honored as one of Houston's Young Black Achievers at
the Human Enrichment of Life Program Annual Award Dinner
766
Leadership Texas - 1990
September 1990 - Citizen of the Month award in recognition of
community service presented by Houston Defender Newspaper
May 1991 - ywcA award in recognition of public service
August 1991 - Austin Metropolitan Business Resource Center
award in recognition of public service
1992 - Houston Business and Professional Men's Club award in
recognition of public service
1993 to 1194 - Fellow, American Leadership Forum - Class XI
9. Bar Associations: List all bar associations, legal or
judicial-related committees or conferences of which you are
or have been a member and give the titles and dates of any
offices which you have held in such groups.
Houston Bar Association
Texas Trial Lawyers Association
W.J. Durham Legal Society
American Trial Lawyers Association
American Bar Association
Houston Lawyers Association
10. Other Memberships: List all organizations to which you
belong that are active in lobbying before public bodies.
Please list all other organizations to which you belong.
I do not belong to any organization that is active in lobbying
before public bodies. However, in my capacity as chairperson
of the Texas Department of Commerce, I am often called upon to
testify before the legislature on issues ranging from the
budget for my agency to workforce training to tourism and
international trade issues and business development. I have
testified before both the Texas House and Senate on several
occasions related to these matters.
I also served as co-chair of a group called Texans for NAFTA.
This organization was formed to educate people about the free
trade agreement and to organize support for its passage.
11. Court Admission: List all courts in which you have been
admitted to practice, with dates of admission and lapses if
any such memberships lapsed. Please explain the reason for
any lapse of membership. Give the same information for
administrative bodies which require special admission to
practice.
Supreme Court of Texas - May, 1982
3
767
United States District Court for the Southern District of
Texas - May, 1987
United States Court of Appeals for the Fifth Circuit
United States District Court for the Northern District of
Texas
Good standing in all courts
12. Published Writings; List the titles, publishers, and dates
of books, articles, reports, or other published material you
have written or edited. Please supply one copy of all
published material not readily available to the Committee.
Also, please supply a copy of all speeches by you on issues
involving constitutional law or legal policy. If there were
press reports about the speech, and they are readily available
to you, please supply them.
Using Expert Help to Overcome Barriers with the Jury When you
are Different from the Pool (and even when you're not); 1991
Copyright, American Bar Association.
Motions In Limine; 1993 Copyright, American Bar Association.
How to Ethically Develop an Environmental and Toxic Torts
Practice; Copyright 1990, American Trial Lawyers Association.
Two copies of each writing attached to original Senate
Questionnaire .
13. Health: What is the present state of your health? List the
date of your last physical examination.
Good.
July 6, 1993.
14. Judicial Office: State (chronologically) any judicial offices
you have held, whether such position was elected or appointed,
and a description of the jurisdiction of each such court.
None
15. Citations: If you are or have been a judge, provide:
(1) citations for the ten most significant opinions you have
written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or
where your judgment was affirmed with significant criticism
of your substantive or procedural rulings; and (3) citations
for significant opinions on federal or state constitutional
issues, together with the citation to appellate court rulings
on such opinions.
N/A
768
16. Public Office; State (chronologically) any public offices you
have held, other than judicial offices, including the terms of
service and whether such positions were elected or appointed.
State (chronologically) any unsuccessful candidacies for
elective public office.
I have never held elected office, however, I have held an
appointed public office. I served first as a member then as
the chairperson of the Texas Department of Commerce and was
appointed to that post by Governor Ann Richards. My first
appointment to that post was in April of 1991 for a term which
expired February of 1993. I was appointed chairperson in
September, 1992. I was reappointed to the Board in February
of 1993 and confirmed by the Senate in March of 1993 for a
term which was to expire February of 1996. I resigned from
the Commerce Board in January of 1994. The Texas Department
of Commerce is the State agency responsible for business
development, tourism and job training for the State of Texas.
I represented the Governor on behalf of the State of Texas in
all areas of economic development.
17. Legal Career:
a. Describe chronologically your law practice and
experience after graduation from law school
including:
1. whether you served as clerk to a judge,
and if so, the name of the judge, the
court, and the dates of the period you
were a clerk:
No.
2. whether you practiced alone, and if so,
the addresses and dates;
No.
3. the dates, names and addresses of law
firms or offices, companies, or
governmental agencies with which you have
been connected, and the nature of your
connection with each;
Vickery, Kilbride, Gilmore & Vickery - Professional
Corporation, however, I have had a partnership arrangement
since April, 1987 (and predecessor firms - Vickery & Kilbride
and Vickery & Webb) . Except for a brief period of time in late
1985 and early 1986, I have been employed by this firm since
August of 1981. Attorney - general civil litigation practice.
769
Sue Schecter & Associates - (currently Martinez & Downs) ;
October, 1985 to April, 1986 - General civil litigation
practice including defense of personal injury and business and
commercial cases.
University of Houston College of Law - Spring 1984 - I worked
as an Adjunct Professor of Law teaching first year legal
research and writing.
b. 1. What has been the general character of
your law practice, dividing it into
periods with dates if its character has
changed over the years?
My practice has always involved general
civil litigation and over the years has
included personal injury, aviation,
election law, oil and gas, and business
and commercial litigation. My emphasis
in recent years has been in the area of
business and commercial litigation.
2. Describe your typical former clients, and
mention the areas, if any, in which you
have specialized.
My clients are generally individuals or
small business people in their own
businesses. Typically I represent these
people as plaintiffs, but I also have
occasion to represent my business clients
as defendants in some matters.
c- 1. Did you appear in court frequently,
occasionally, or not at all? If the
frequency of your appearances in court
varied, describe each such variance,
giving dates.
I have appeared in court regularly.
2. What percentage of these appearances was
in:
(a) federal courts; 20%
(b) state courts of record; 80%
(c) other courts.
3. What percentage of your litigation was:
(a) civil; 100%
(b) criminal.
770
4 • State the number of cases in courts of
record you tried to verdict or judgment
(rather than settled) , indicating whether
you were sole counsel, chief counsel, or
associate counsel.
I have tried approximately twenty-five
cases to verdict. At the inception of my
practice I tried more cases as an
associate counsel rather than as lead
counsel or co-counsel. In the last five
years I have tried approximately ten
cases to verdict. In each of those cases
I was either sole counsel, chief counsel
or co-counsel.
5. What percentage of these trials was:
(a) jury - 90%
(b) non-jury - 10%
18. Litigation: Describe the ten most significant litigated
matters which you personally handled. Give the citations, in
the cases reported, and the docket number and date if
unreported. Give a capsule summary of the substance of each
case. Identify the party or parties whom you represented;
describe in detail the nature of your participation in the
litigation and the final disposition of the case. Also state
as to each case:
First Case
a. Case name, number, citation, name, of court and name of
party you represented.
Teledesign v. American Telephone & Telegraph Company, Civil
Action No. H-92-1414; In The United States District Court for
the Southern District of Texas, Houston Division
Represented the Plaintiff - Teledesign
Trial Date: February 15, 1994 to March 11, 1994
b. Brief summary and significance of the case.
Teledesign was a reseller of long distance service and had a
contract with ATiT to purchase long distance time under their
Software Designed Network (SDN) for resale. Plaintiff made
claims against AT&T for violations of the Federal
Communications Act, as well as claims for fraud and tortious
interference. Plaintiff alleged that AT&T discriminated
against them under the FCA by preferring one class of
customers over another, that AT&T tortiously interfered with
771
their contract with a third party by failing to provide
services under the contract and that they defrauded then by
representing, among other things, that the network would have
certain characteristics that it did not. Plaintiff suffered
lost profits of approximately $23 million as result of AT&T's
actions.
c. The significance of your role in case.
This is the last case I tried. It was a month long trial
involving numerous complex legal issues including
attorney/client privilege, lost profits, lay opinion testimony
and primary jurisdiction. This case is significant because my
clients are one of some twenty to thirty resellers who have
similar cases pending against AT&T nationwide. Our case was
the first such case to go to trial in the United States and as
such was closely followed by reseller attorneys across the
country.
d. Presiding Judge
Judge Kenneth Hoyt.
e. Name, address and telephone number of opposing counsel.
Paula Weems Hinton
Akin, Gump, Hauer & Feld
1900 Pennzoil Place - S. Tower
Houston, Texas 77002
(713) 220-5822
f. Final disposition.
The case involved three separate causes of action. The Court
chose to withdraw the FCA claims from the jury's consideration
upon agreement by the parties. The causes of action that went
to the jury were fraud and tortious interference. The jury
found against the Plaintiff on the fraud cause of action, but
was unable to reach a verdict on the tortious interference
claims and did not return a verdict on that cause of action.
Second Case
a. Case name, number, citation, name, of court and name of
party you represented.
Prentice Colour vs. AB Dick; Civil Action No. H-86-585; In
the United States District Court for the Southern District of
Texas, Houston Division.
Represented the Plaintiff - Prentice Colour.
Date: August, 1989 and January, 1992
8
772
b. Brief summary and significance of the case.
This was a business case involving breach of a contract to
market a new patented process for producing color separations.
The Plaintiff was a small company which owned the patent and
had a limited opportunity to commercially exploit it before
the technology became obsolete. The Defendant agreed to
market the process, tied up the patent with an exclusive
marketing agreement and then failed to market the process,
waiting instead until it bought 100% of the next generation of
technology. The Plaintiff was forced out of business because
of the delay and eventually filed for bankruptcy. The case
was first tried to a verdict in 1989. The Court granted a new
trial based on concerns the Court had about the adequacy of
the expert testimony as it related to damages. The retrial of
the case took place in January, 1992.
c. The significance of your role in case.
I assumed the representation of the case after another law
firm had to withdraw when the Plaintiff was no longer able to
pay that firm on a standard hourly fee basis. I devised a
creative fee structure to allow this client to pursue a
meritorious claim that they would not have been able to
otherwise pursue.
d. Presiding judge.
Judge James DeAnda (retired)
e. Name, address and telephone number of opposing counsel.
Steven McCormick - August, 1989
Stephanie Scharf, Esp.
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2246
David Beck - January, 1992
Beck, Redden & Sechrest
1331 Lamar Street, Suite 1570
Houston, Texas 77010-2002
(713) 659-8140
f. Final disposition.
The case was tried to a jury in 1990 which resulted in a
verdict of $28,552,000.00 and a final judgment of
$41,215,000.00. After the Court granted a new trial, the case
was tried to a jury in 1992 and resulted in a verdict of
773
$378,000 and a final judgment of $678,010.98. The case was
eventually settled after being set for appeal.
yhird Case
a. Case name, number, citation, name of court and name of
party you represented.
Beale vs. Beechnut Manor Nursing Home; Cause No. 90-18826; In
the District Court of Harris County, Texas 234th Judicial
District. I represented the Plaintiff.
Date: May 1992
b. Brief summary and significance of the case.
This was a wrongful death case filed against a nursing home
related to the drowning death of Mr. John Beale while a
resident in that home. This case was significant because the
coroner found the cause of death to be asphyxia due to
drowning, but after the family notified the home that they
intended to file a lawsuit related to their father's death,
the nursing home had the autopsy investigation re-opened by
filing fraudulent affidavits claiming there was no water in
the bathtub. Thereafter the coroner changed the cause of
death to coronary artery sclerosis. It was necessary to
establish the correct cause of death as well as the fraud that
had occurred in the amendment of the autopsy report.
c. The significance of your role in case.
I pursued the case on behalf of the plaintiffs, originally
representing the nine adult children of the deceased, but
ultimately representing only one of the children after the
others dropped out for religious reasons. I was able to
locate evidence refuting the claims of the Defendant that
there was no water in the tub and supporting the original
diagnosis of death as asphyxia due to drowning.
d. Presiding judge.
Judge Scott Brister
e. Name, address and telephone number of opposing counsel
James B. Edwards, Esq.
Christopher Aruffo, Esq.
Edwards & Calvert
1800 W. Loop South, Suite 1500
Houston, Texas 77027
(713) 622-2111
10
774
f. Final disposition.
The case was tried to a jury which resulted in a verdict of
$1,000,000.00
Fourth Case
a. Case name, number, citation, name of court and name of
party you represented.
Scott R. Hanley and Texas Gulf Marine, Inc. vs. Oxy USA Inc.,
formerly known as Cities Service Oil and Gas and Marty Kelly;
Civil Action No. H-88-2944; In the United States District
Court for the Southern District of Texas, Houston Division.
I represented the Plaintiff.
Date: October 1990
b. Brief summary and significance of the case.
Plaintiff was a broker of utility boats for the oil and gas
industry. He was under contract with Oxy to service their
offshore oil platforms when an Oxy employee began to
deliberately interfere with the Plaintiff's contract with the
individuals from whom he brokered boats because of their
unwillingness to comply with unreasonable demands. He injured
plaintiff's reputation in the industry which eventually
resulted in the destruction of the plaintiff's business. The
plaintiff sued the defendant for tortious interference with
Plaintiff's offshore utility boat business and the slander of
Plaintiff in connection with the operation of that business.
c. The significance of your role in case.
The essence of the Plaintiff's claims relating to lost profits
required a deep investigation into and clear explanation of
the nature of the offshore utility boat business in the oil
and gas industry. Representation of this client required that
I learn a substantial amount about the offshore utility boat
business in order to give a complete picture to the jury about
how the slanderous statements of defendant's employee resulted
in the destruction of a business he had operated for several
years.
d. Presiding judge.
Judge James DeAnda (retired)
e. Name, address and telephone number of opposing counsel.
J. Michael Dorman, Esq.
Joel R. White, Esq.
Liddell, Sapp, Zivley, Hill & LaBoon
11
775
3 3 00 Texas Commerce Tower
Houston, Texas 77002
(713) 226-1200
f. Final disposition.
The case was tried to a jury which resulted in a verdict of
$201,000.00.
Fifth Case
a. Case name, number, citation, name of court and name of
party you represented,
Faridoon Felfeli vs. M. Sepahsalary, Trustee; Civil Action No.
82-36089; In the District Court of Harris County Texas, 164th
Judicial District.
Date: February 1983
b. Brief summary and significance of the case.
This was a suit filed to remove the cloud cast on the title of
property by a forged deed. The deed allegedly conveyed
property belonging to the Plaintiff worth in excess of
$10,000,000.00 to M. Sepahsalary, Trustee. At the time that
the deed was allegedly signed, Plaintiff, an Iranian citizen,
was being held captive in Iran after the nationalization of
his businesses by the Ayotollah Khomeni. The "trustee" to
whom the property was allegedly conveyed was actually the name
of a mythical character in Iranian legend, and the address of
the trustee was non-existent.
c. The significance of your role in case.
In representing the Plaintiff I was required to establish not
only the forgery in question, but also that the underlying
deed was a complete fraud. The determination of the forgery
was accomplished by locating numerous documents and conducting
an exhaustive study by a forensic document examiner. To
establish the fraudulent nature of the underlying deed, I
worked with the Iranian consulate to obtain confirmation that
the address listed on the deed was non-existent. Eventually,
I was able to obtain maps of the area to validate our claim
that there was no such address. This evidence together with
the evidence of the forensic document examiner proved
sufficient to establish the validity of my client's claims.
d. Presiding judge.
Judge Alvin Zimmerman
e. Name, address and telephone number of opposing counsel.
12
\
776
George Houghton
Houghton & David
2302 Fannin St., Suite 369
Houston, Texas 77004
(713) 659-3146
f. Final disposition
Court ruled that the Sepahsalary deed was a forgery and that
it would be declared void thereby clearing up the title to the
property.
Sixth Case
a. Case name, number, citation, name of court and name of
party you represented.
No. H-86-310; Multivision Systems, Inc., et. al . vs. Donrey;
In the United States District Court, Houston Division
Date: September 1987
No. 88-2073; Multivision Systems, Inc., et. al . vs. Donrey; In
the United States Court of Appeals for the Fifth Circuit
Date: October 1988
b. Brief summary and significance of the case.
My client, Multivision Systems, Inc. had an exclusive
marketing arrangement with a Japanese company to market a
state of the art electronic billboard in the United States.
A joint venture agreement was formed with Donrey, a major
national advertising company, to market, distribute, install
and service the boards. Donrey did not live up to its
obligations under the agreement and the venture failed.
c. The significance of your role in case.
I served as co-counsel in the trial of this case and lead
counsel in the appeal. The technology involved in this action
represented a significant advancement in outdoor advertising.
My clients could have realized enormous profits from this
venture if it had been successful. These boards were
eventually put into the Astrodome in Houston, Texas and the
Astrodome underwent major renovations to be able to
accommodate the new boards.
d. Presiding judge.
Judge Norman Black
e. Name, address and telephone number of opposing counsel.
13
777
James Carmody, Esq.
Chamberlain, Hrdlicka, White, Johnson & Williams
1400 Citicorp Center
1200 Smith Street
Houston, Texas 77002
(713) 658-1818
f. Final disposition
This case was tried to a verdict in favor of the defendant and
appealed to determine if that finding was erroneous. The
Fifth circuit declined to make a finding that the judgment
rendered by the Court was erroneous.
Seventh Case
a. Case name, number, citation, name of court and name of
party you represented.
C. A. No. 81-54973; Joyce Stagg, et, al . vs. Estelle Morgan,
In the 190th Judicial District, Harris County, Texas;
Dates: August 1983, December 1986,
No. 01-87-0029-CV; Joyce Stagg, et, al . vs. Estelle Morgan, In
the Court of Appeals, First Supreme Judicial District of Texas
Date: November 1987
b. Brief summary and significance of the case.
This case involved the sale of a drapery business by the
Defendant to the Plaintiffs. After making the purchase, the
Plaintiffs determined that the Defendant had misrepresented
certain information regarding the value of the business and
had deliberately withheld critical information that would have
influenced their decision to purchase the business.
Additionally, the Defendant violated a covenant not to compete
by setting up a business in her home to perform the same work
immediately after her sale of the business to the Plaintiffs.
The first trial of this case resulted in a mistrial.
Following the second trial, an appeal was filed which involved
the issue of the court's error in making an award on the
counterclaim and in refusing to submit the plaintiffs' claim
under the Deceptive Trade Practices Act. Plaintiffs prevailed
on appeal.
c. The significance of your role in case.
I participated in the trial of this case, but only discovered
the defendant's fraud in withholding critical evidence during
the trial of the first case. I was able to convince the Judge
to declare a mistrial on the basis of the fraudulently
14
778
concealed evidence. Afterwards, I served as lead counsel in
the re-trial of the case and on the appeal.
d. Presiding judge.
Judge Ruby Sondock
e. Name, address and telephone number of opposing counsel.
John Browne
3636 Texas Commerce Tower
600 Travis Street
Houston, Texas 77002
(713) 224-5341
f. Final disposition
The jury found that the seller had fraudulently misrepresented
the business profits before the sale and that she had breached
her contractual and fiduciary duties to the purchasers and
awarded the purchasers damages of $61,324.95 but also ordered
the purchasers to pay the seller $24,791.26 still unpaid under
the sales contract. The Court of Appeals affirmed the payment
to the purchasers and reversed the award to the seller.
Eighth Case
a. Case name, number, citation, name of court and name of
party you represented.
C.A. No. 82-17906; Jennifer Graves vs. City of Houston; In the
District Court of Harris County, Texas, 129th Judicial
District
Date: December, 1984
b. Brief summary and significance of the case.
This was a personal injury case where a young woman was
seriously injured after falling into a pit created when the
sidewalk collapsed after a water main rupture. The central
issue in the case turned on whether the city had sufficient
notice of the problem to make them liable for the injuries of
the Plaintiff.
c. The significance of your role in case.
As a result of my involvement with this young woman, I not
only assisted her in pursuing this matter, but I also assisted
her and her family with a number of other needs by helping her
access available services in the community. I also felt that
15
779
it was a great compliment when my opposing counsel offered me
a job after the trial of this case.
d. Presiding judge.
Judge Hugo Touchy
e. Name, address and telephone number of opposing counsel.
William Fiddes
City of Houston
Houston, Texas 77002
f. Final disposition
The jury awarded damages to the Plaintiff, however she was not
able to make any recovery because they also found that the
City of Houston had not had sufficient notice of the defect in
the sidewalk to make the repairs that could have prevented
this accident.
Ninth Case
a. Case name, number, citation, name of court and name of
party you represented.
CA No. 84-21972; Cecil Bush vs. Betty Brock Bell and the
Executive Committee of the Harris County Democratic Party; In
the 61st Judicial District, Harris County, Texas
Date: 1984
b. Brief summary and significance of the case.
In this election law case, I represented the Harris County
Democratic Party in a claim by a Justice of the Peace
challenging the right of his opponent to run against him. The
incumbent elected official was being challenged in the
election by a woman who was employed by him. He filed this
action to challenge her right to run in the election because
of questions concerning her residency. The Harris County
Democratic Party was a necessary party to this action as the
party was responsible for all candidates on the primary
ballot. My role was to establish that the party was entitled
to rely on the sworn representations of potential candidates
regarding their residency, and that it was not required to
look beyond those representations to investigate residency
claims.
c. The significance of your role in case.
Although the case was tried to a verdict in favor of the
challenger, it was appealed the week before the general
16
780
election. That necessitated an expedited appellate hearing in
order to facilitate the preparation of the proper ballots for
the election. I had previously represented the Harris County
Democratic Party in a number of election law matters. This
was the first case I had ever tried to verdict involving an
election law issue.
d. Presiding judge.
Judge Shearn Smith
e. Name, address and telephone number of opposing counsel.
W. Ray Howard
652 6 Mykawa Road
Houston, Texas 77033
(713) 733-3030
Sarnie Randle
Randle & Associates
1111 Bagby, Suite 1530
Houston, Texas 77002
(713) 655-1700
f. Final disposition
Betty Brock Bell prevailed in the trial court and that ruling
held up on appeal, so her name was placed on the ballot. She
was elected to office and continues to serve in that position
today.
Tenth Case
a. Case name, number, citation, name of court and name of
party you represented.
CA No. 88-02706; MeJvyn and Christina Brandt vs. Memorial
Hospital Systems, et.al.; In the 234th Judicial District,
Harris County, Texas
Date: April 1992
b. Brief summary and significance of the case.
This case was brought by the surviving widow and children of
a man who contracted AIDS as a result of the transfusion of
contaminated blood and blood products during heart surgery.
The case raised issues not only about the duty of the health
care system to ascertain whether blood products are free of
disease, but it also raised medical negligence issues related
to the excessive number of blood transfusions given to the
patient in this case.
17
781
c. The significance of your role in case.
I was asked by the court to represent the minor child as his
attorney ad litem. I felt this was a tremendous
responsibility because despite my genuine concern for the
family and all that they had been through, there were a number
of legal hurdles that I did not believe the Plaintiffs could
overcome related both to the duty and ability of the
healthcare system to test blood products for AIDS at the time
of this incident and the obligation of the health care
providers to limit the amount of blood products used because
of the potential danger those products might pose. It
eventually became my role to convince the Plaintiffs to
dismiss some of their causes of action after it was determined
that there was no legal basis for those claims.
d. Presiding judge.
Judge Scott A. Brister
e. Name, address and telephone number of opposing counsel.
Carl Dawson
Ryan & Winchester
770 Post Oak Blvd., Suite 101
Houston, Texas 77056
(713) 960-1555
William G. Neumann, Jr.
Krist, Gunn, Weller & Neumann
17555 El Camino Real
Houston, Texas 77058
(713) 283-8500
John Shepherd
John Ellis & Associates
1211 Lamar, Suite 620
Houston, Texas 77010
(713) 654-7900
f. Final disposition
The jury determined that there was no legal basis for any of
the claims made by the Plaintiffs since the transfusion of the
blood took place prior to the institution of established
guidelines for testing blood for the AIDS virus.
19. Legal Activities: Describe the most significant legal
activities you have pursued, including significant litigation
which did not progress to trial or legal matters that did not
involve litigation. Describe the nature of your participation
in this question, please omit any information protected by the
18
782
attorney-client privilege (unless the privilege has been
waived) .
For several years I have volunteered my legal services in the
area of election law. During every general election, I work
to assure that all citizens are given an opportunity to vote
by teaching classes to volunteers on election law, especially
in the area of voter rights. Rather than working for any
particular candidate, I try to make myself available to answer
questions for anyone with an election or voting law issue or
problem and work with the secretary of state and other local
authorities to correct any problems that might interfere with
the election process.
I am also involved in a number of community activities where
I am often called upon to provide legal advice or counsel on
matters such as leases, contracts, pending litigation,
employment and real estate issues. I have provided legal work
on a pro bono basis with regard to these issues for several
organizations including the YWCA of Houston and the
Neighborhood Recovery Community Development Corporation.
I have had several occasions to be appointed and serve as an
attorney ad litem representing the interests of minor children
in pending matters. I have found this experience very
rewarding as it has given me an opportunity to provide a very
vital and important service for these children and their
families. One such case is previously discussed as the Tenth
Case under question No. 18.
The trial court docket in Houston, Harris County, Texas is
extraordinarily crowded. It is not unusual for it to take
three to four years to get to trial on a simple matter. To
alleviate some of the backlog in our courts, the practitioners
in this area make frequent use of the "Alternative Dispute
Resolution" statutes, and cases are frequently resolved
through mediation or arbitration. I have made use of the
mediation process where appropriate, and have been able to
resolve a number of cases for my clients through this process.
Although these hearings do not generally take on the formality
of a trial, litigation skill and the ability to effectively
argue and present your client's case is extremely critical.
Some examples follow:
CA No. 87-60295; Ricca vs. Citv of Houston; In the 295th
Judicial District, Harris County Texas - This case involved a
serious injury suffered by a young executive when he was run
over by a speeding police car while on his bicycle. He
sustained serious closed head injuries, was comatose for a
time. That case was eventually settled with the city for
$215,000.00
19
783
Mr. Ricca never fully recovered from the injuries sustained
and I was required, in a companion case, to pursue his
disability insurance carrier for bad faith insurance practices
when they denied his disability benefits. That case was
styled Civil Action No. H-92 -425; Ricca vs. Provident Life &
Accident Insurance Co. ; In the United States District Court
for the Southern District of Texas. That case was settled
with the carrier for $288,000.00,
General Homes Corporation litigation: I represented this
homebuilder in a number of cases involving lawsuits and claims
by homeowners related to faulty plumbing that had been
installed in their homes by the subcontractors of this
builder. I worked to resolve hundreds of claims by seeking
and obtaining commitments from numerous insurance carriers to
compensate these homeowners and then arranging inspections and
evaluations of each individual home. This procedure, although
complicated and time consuming, avoided the necessity for
expensive and protracted litigation for all parties concerned.
I have resolved a number of cases by seeking and obtaining
temporary injunctions which resulted in the early settlement
of lawsuits without the need for protracted litigation. One
such case involved the procurement of a temporary injunction
against a man who was illegally drilling oil from an oil well
owned by my client. A temporary injunction was obtained which
prohibited him from trespassing on the property of my client
and removing his oil. This injunction enabled us to reach an
early settlement of the case before the scheduled trial date.
20
784
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, anounts and dates of all anticipated receipts
from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive
from previous business relationships, professional services,
firm memberships, former employers, clients, or customers.
Please describe the arrangements you have made to be
compensated in the future for any financial or business
interest.
See attached Financial Disclosure Report.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the categories
of litigation and financial arrangements that are likely to
present potential conflicts of interest during your initial
service in the position to which you have been nominated.
The nature of my practice is such that I have always
represented individuals or small business people. Because of
that, I do not think there is a likelihood that I would have
many conflicts arise. However, if a conflict did arise
involving a former client, it would be easy to identify and I
would take immediate steps to remove myself from the case.
Additionally, I would follow the Code of Judicial Conduct with
regard to any potential conflict of interest.
Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during your
service with the court? If so, explain.
No.
List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more (if you prefer to do so,
copies of the financial disclosure report, required by the
Ethics in Government Act of 1978, may be substituted here.
See attached Financial Disclosure Report.
Please complete tht attached financial net worth statement in
detail (Add schedules as called for) .
Attached.
21
785
Have you ever held a position or played a role in a political
campaign? If so, please identify the particulars of the
campaign, including the candidate, dates of the campaign,
your title and responsibilities.
For several years I have volunteered my legal services in the
area of election law. During every general election, I work
to assure that all citizens are given an opportunity to vote
by teaching classes to volunteers on election law, especially
in the area of voter rights. Rather than working for any
particular candidate, I try to make myself available to answer
questions for anyone with an election or voting law issue or
problem and work with the secretary of state and other local
authorities to correct any problems that might interfere with
the election process.
22
786
AMENDED*
FINANCIAL DISCLOSURE REPORT Sf^.r-siUJll^risl;; '•
(S g.l.C.A. App. 6, (tlOl-112)
1. rarwB laporUag (Lut ua», (Int, BldAl* 1»1rl«1) 3. Coan or Oryaalutloa
GUnDre, Vanessa D.
(Artlcl* ZII jodgM Indlcata actlv* or
••nlor autus; Haglatrata Jadgaa Ijidieata
Coll- or parx-tlaa)
Attorney
7. Ckaabors or Oftlco Jbddroaa
2929 Allen Parkway, Suite 2270
Houston, Texas 77019
U.S. District Court
Southern District of Texas
5. Roport Typo (ebock approprlato typo)
-X- «— i"tioo, D^t^frtarvh 22, 199-
3. DAta of msport
March 22, 1994
t. Ob thm b*al« of ttao laft
is, la ay oploioa,
rogolatloos .
nawlovlng Officer aigoktars
6. Bspoxtlag Period
Janusury 1, 1993
to
Ntarrh K 1994
wltb appllcobla lava aod
IMPORTANT NOTES: The instructions cccompcnying this form must be followed. Complete all parts,
cfaccUng the NONE box for each «cctioD where joa have no reportable informatioii. Sign on last page.
I. POSITIONS. (Reporting individual only, see pp. 7.8 of Instnictions.)
POSITION NAME OF ORGANIZATION/ENnTY
D
NONE (Ho roporLabla poaltloaa)
President
VARA Broadcastdm Oorrxiration
II. AGREEMENTS. (Reponing individual only, see p. 8-9 of Instruaions.)
DATE PARTIES AND TERMS
n
NONE (Ho raportable agraaoanta)
10/26/93 Aqreenent with Vickery, Kilbride, Gilmore & Vickerv (attached)
Agreement with Elizabeth Kilbride - 20% retained fee interest
1/4/94 in matter of G. Oliver Williams
III. NON-INVESTMENT INCOME. (Reporting individual and tpoose; tee pp. 9-12 of InstnicUons.)
DATE SOURCE AND TYPE GROSS INCOME
n
(Honoraria only)
NONE (ao raporubla Doo-lmraotBoat laeoaa)
Virkpry. KilhriA^, ni Imnnp fc Virkpry
(youn, Qol spouse's)
S 7fiR,?4^.nn
$
$
$
$
787
FINANCIAL DISCLOSURE REPORT (confd)
■aa» of rarftofi Iteponlog
Gilmore, Vanessa D.
Dat« of 8l«port
March 22, 1994
IV REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.
nndades those to tponse ud dependent diUdren: o»e the purntheticals '(S)' and •fDC)' to Indicate reportable
idmbtu jcmeots ana gins rtcelvtd by ipoose «nd dependent chUdrcn, respectircly. See pp.13-15 of InitniOkHic.)
SOURCE DESCRIPTION
n
NONE do oiicb laportaMo rilrtiiri— 1» or «l(u)
Rypnyt:
V OTHER GIFTS, (includes those to spouse and deneadent cfaUdreo; use the pucnthetlcals '(S)' and '(DC)' to
indicate other gifts receind by spouse and dependent cfaUdrcn, respectively. See pp.15-16 of Instnictiafis.)
n
SOURCE DESCRIPTION VALUE
NONE (Ho aucb roporfblo glfu)
Exenpt *
$
^__ $
$
VI LIABILITIES, (includes those of spouse and dependent children; indicate where applicable, person responsible
ror liability by using the parenthetical *(S)' for separate liabUity of spouse, '(J)' for joint liability of reporting
individual and spouse, and '(DC)* for liability of a dependent child. See pp.l6-18 orlnstnictions.)
CREDITOR DESCRIPTION VALUE CODE*
H
NONE (IK> nporuttla lUbllltlaa)
a - (15,000 or lM> « i «i»;ooi to iso.ooo ' i- i Jo.ool' *a ttocooo a - uoo,wi to MM.ooo
■ - S2iO,001 t« SSSO.OOa O - SiOO.OOl w tl.OM.OOO f • aot« ttM^M.OOO.OOO - ;, , ;j^ . > , .
788
FINANCIAL DISOjOSURE REPORT (cont'd)
!•■• of Pvraoo lAportlog
GUUtore, Vcuiessa D.
SMtm of toport
Bterch 22, 1994
VII INVESTMENTS and TRUSTS - income, value, transactions, (indudes those or ipoose
•nd dependeot cfaUdRn; sec pp. 18-27 of Instnictioiu.)
"'-"' * ^ polKJrlptloB at Xu«t* .
ml mus ol
TTUis«ctloti« during roporttog porlod
<i)
<2)
(1)
(?*i
It oot MMMmpt. Irxm disclosur* |
«4)
bav«r7fill«c
III privat*
trui«ocsoo)
NONE (Ho nporubl*
li — . Maau, or
iranaactloaa )
I
rhrvsler Corp. (bond)
A
Int.
J
T
r^rtificate of Denosit
A
Int.
K
T
3
A
Tnt.
.7
T
G.T. Global European Fund
A
Div.
J
T
5
r: T niohal Telecom. Fund
A
Div.
J
T
6
r^n W-it-nr?; (orpf. stock)
A
Div.
J
T
7
A
niv.
J
T
G.T. Global Health Fund
A
Div.
J
T
9
Qmith Fwmpv Dailv Div. Fund
A
Div.
J
T
10
Smi th Ft=impv Tax ExemDt
A
Div.
J
T
feuthwest Bank of Texas
A
Int
J
T
^27'Laitochelle
Rcant-Al nrnn*=»r1-v
D
Rent
L
W
^/KrA Broadcasting Corp.
note
E
Loan
Repay
J
U
14
*G.T. Global Telcorn.
A
Div.
J
T
'*'Smith Barney
A
Div.
J
T
'^Smitli Barney
A
niv.
J
T
!•
19
20
fSc^/0»l« COto.1 1^1,000 or I... • - WM)litn'tai»;1^'*' '■ C-$7,S0l to 5,000 D.J5,001 to «1S,000
ttmm Col. Bl 4 D41 »-SJJ.0«l to J50.OO0 F-S50.001 to jlOO.OOO »-{l00,«01 to |l,OO0,O00 f-Ho™ th.q J) 000,000
1 tllio toCt l4W^6i l«u x-iU|Ul to lU.Ul l-)S9.Ul U lIU,6A& l«.51M,ooi to Jsio.ooo
(BM Col. Cl 4 03) «.S250.DO\ to SiOO.OOO O-5500.001 to il.OOO.OOO r>Hara tllul 11.000.000
789
FINANCIAL DISCLOSURE REPORT (cont'd)
Wamm oC F*r«» Raportlng
Gilmore, Vanessa D,
Data of Baporx
March 22, 1994
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (indioite p«t of Report)
IX. CERTIFICATION.
In compliance with the provisions of 28 U.S.C S 455 and of Advisory Opinion No. 57 of Ihe Advisory Committee on
Judicial Activities, and to tbe best of my knowledge at the time after reasonable inquiry, 1 did not perform any adjudicatory
function in any litigation during the period covered by this repon in which I, my spouse, or my minor or dependent children
had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I certify that all information given above (including information pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was
withheld because it met applicable statutory provisions permitting non-disclosure.
I further cent'y that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of S U.S.CA. app. 7, $ SOI eL seq., 5 U.S.C i 7353 and Judicial Conference
regulations.
Signature
Date
W?T2ei^36,m^
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA. APP. 6. { 104, AND 18 U.S.C S 1001.)
■-v:.,::/;.:s;. .. ::;;;; :/.;s,/*v:,^ - •
^::i:*a*ii»s< . -
- 'FELmO INSTRUCTIONS-
Man signed original and 3 additional copies, to: .v^%ȣ^ . V/r
.-- Jodidal Ethics Comtnillix. - ■
Admlnisuative 0£Boe of the
United States Courts
Washington, DC 20544
790
nNANOAL STATEMENT
KET WORTH
Piovide a complete, current flnuiciaj net worth suument which ilcmirei In detiU
aU assets (IncludLng bint accounts, real estate, secuiiticJ, tr\)$is, investments, and other financial
holdings) all UaKJitJes (bcludlng debts, monjagcs. loans, and other financial obUgatJons) of
yotirjelf. your spouse, and other Immediate memben of your household.
- • ■ —
j ASSETS
UABELmES 1
Ctjh on Und uii in b«n]u
R
nnn
00
Kotu fAfbU to buib-wcwed
4?
5O0
M_
U.S. GovuBmcnl uean&a-iJii
(clxdulc
68
500
00
Nolu pijriblc Is b*nb-wuMV.-cd
Lifted tcCUna'cl-xU KhcduU
Ncttt ptytbk Is rduiva
—
VnSittci K«siCici"uU tcbedjJc
Nolei ptytble la ollicn
Acxounli tni boUi i«tiv»bl«
AccotuiU utd billi due
. la.
nnn
nn
1>M« torn f«lnir«« tni tntfiit
son
.4)0-.
Unplld tncAme lax
Due fiom olhot
14
lfi7
nn
Other wiptid lu lind inUrett
Doubtful
Reel etUle reon{ite< piyible-edd
ichcdu]t
216
311
19 .
Ketl t4Ulc owncd-v5d Kiitiu'.t
$250
000
00
ChtAeJ owftxi^u end other lieiu pey-
>b1e
i
1 RtJ «»Ule moiU't" toctiYitle
Other dctti-ilemile:
Auloi tni other jKnooC property
q=;
i\nn
nn
1
Cuh vilue-L/e iniiL-uice
1
400
00
1
Oiher uiiti-iumLw:
1
/
Tottl liibDilici
275
811
19
Het Worth
Ifil
7'i'i
fil
Tout AucU
417
ifi7
Tottl bibOilier ml net vgrlh
4?7
■nfiT
CO.vnNCENT UABiunzs
nn
nn
nn
CENTRAL INFORMATION
As eodotwr, comtkct or |uuulor
0
Are 4iiy ux'j f^tS^tit (Add Kh<4-
NO
Oa Uisei at confruU
0
Are yoa defeadtnl ir, u-.y (iiiu or Ufi
ic6onif
NO
i
Lcfiiatlnu
0
HtTc you ever bUo binbvpic)}
m
i
PirovtUoa fof T»i<ni Inoomt T«
0
Other ipeeul debt | 0
'
791
REAL ESTATE OWNED
Est. Value Liability
1211 Post Oak Park Drive $170,000 $142,119.68*
Houston, Texas 77027
7827 LaRochelle Circle $ 80,000 $ 74,191.51»
Houston, Texas 77071
$250,000 $$216,311.19
♦Prudential Home Mortgage
•NationsBanc Mortgage Corp.
792
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some time to participate in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances
and the amount of time devoted to each.
I am involved in numerous public service activities in my
community and serve on the boards of or work with a number of
other civic, charitable and educational institutions including
the following:
For two years, until 1992, I served as President of the YWCA
of Houston and worked in that capacity to enhance the lives of
women and girls by providing quality low cost day care and
activities for seniors and teens. I now serve on the advisory
board of the YWCA.
I am also an active member of the Neighborhood Recovery
Community Development Corporation board of directors, a board
on which I serve with my pastor. Bill Lawson and our local
Catholic Bishop, Joe Fiorenza. We are working to make
affordable low-income housing available in Houston and feel
that our work over the past two years has begun to come to
fruition with the purchase and renovation of our first
property in September, 199 3.
From April of 1991 to January of 1994, I served as a member,
then as the chairperson of the Texas Department of Commerce
board, the Texas State agency responsible for business
development, tourism development and job training.
Service Academy Nominations Board - Congressman Jack Fields -
1993
University of Houston Law Alumni Board - In 1993 and 1994 I
served as a member of the Dean Search Committee to locate a
new dean for the law school
Missouri City Chapter of the Links, Inc. - I served as
Chairperson of the LEAD substance abuse and teen pregnancy
prevention program and supervised a year long program for
children living in one of Houston's poorest areas during the
1990-1991 school year.
NAACP — Chairperson of the Churches and Organizations
Committee for the 1989 - 1993 Freedom Fund Banquets
23
793
Texas Southern University Foundation Board
St. Joseph's Hospital Administrators Advisory Board
Houston Area Urban League - Banquet Committee
Texans for NAFTA - Chairperson
Post Oak Park Townhomes board of directors
African American Art Advisory Association - Museum of Fine
Arts
I speak regularly to legal, business and educational groups in
Texas and around the Country. The following list is
representative of speeches I have given in recent years:
- September 17, 1993 - Minority Enterprise Development Week
(MEDWEEK) - Houston, Texas - Presented proclamation for
Governor Ann Richards and talked about minority business
development opportunities with the state of Texas.
* - August 6, 1993 - American Bar Association Convention - New
York, New York - Motions in Limine.
- July 21, 1993 - Houston Business Council - Houston, Texas -
Recap of business development legislation from 1993
legislative session and Texas Department of Commerce plans for
business development and job training.
- July 9, 1993 - State Bar of Texas - Austin, Texas - Damages
- May 14, 1993 - Texas ASM University, 1993 Graduates -
College Station, Texas - Commencement Address - Doing business
in a global economy.
- May 12, 1993 - Governor's Business Development Council -
Austin, Texas - Texas Department of Commerce plans for
business development and job training.
- April 23, 1993 - XI Annual Border Governor's Conference -
Monterrey, Mexico - Governor Richards' commitment to free
trade.
- April 22, 1993 - Laredo Business and Professional Women's
Association - Laredo, Texas - Business opportunities for
women .
- November 7, 1992 - Hampton University Alumni Association -
Dallas, Texas - Promoting involvement of the African American
community in public service.
- January 31, 1992 - Leadership Texas - Austin, Texas - The
public service role of boards and commissions.
* - August 13, 1991 - American Bar Association - Atlanta,
Georgia -Using expert help to overcome barriers with the jury.
24
794
* - July 1990 - American Trial Lawyers Association - San
Diego, California - How to ethically develop an environmental
and toxic torts practice.
Between 1991 and 1993 I have addressed the Texas legislature
as well as several business and economic development
organizations and tourism industry groups on business
development, tourism development and job training and the role
and efforts of the Texas Department of Commerce in these areas
in my capacity as chairperson of the Texas Department of
Commerce .
(* indicates a paper was published for this address)
This year, I am scheduled to speak at the following events and
conferences:
May, 1994 - American Bar Association - Litigation Section -
The Woman Advocate '94, Chicago, Illinois
May, 1994 - High School graduates of Holman Street Baptist
Church
June, 1994 - Greater Houston Women's Foundation
The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is an appropriate for a judge
to hold membership in any organization that individually
discriminates on the basis of race, sex, or religion. Do you
currently belong, or have you belonged, to any organization
which discriminates — through either formal membership
requirements or the practical implementation of membership
policies? If so, list, with dates of membership. What have
you done to try to change these policies?
No.
Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal
courts? If so, did it recommend your nomination?
Please describe your experience in the entire judicial
selection process, from beginning to end (including the
circumstances which led to your nomination and interviews in
which you participated) .
Yes. There is a selection committee in this area. The
committee is composed of a broad range of individuals from the
community. Originally I was asked to serve as a member of
that committee to assist with making recommendations to then
Senator Krueger. However, I was asked by members of the
committee to submit my name for consideration instead and I
submitted an application and was interviewed by approximately
25
795
sixteen members of the committee. My name, along with several
others as I understand, was submitted to Senator Krueger for
consideration and a final selection was made by the Senator.
After recommendation by the Senator, I was contacted by the
Justice Department and interviewed by a member of the Justice
Department staff as part of the nomination process.
Thereafter, I was contacted by the White House, Office of the
General Counsel and requested to complete the forms for the
Justice Department, American Bar Association, FBI, and Senate
Judiciary Committee. I was interviewed by the FBI and
provided them with additional requested information regarding
my medical history, organizational involvement, speeches and
published articles. I was also interviewed by a
representative of the American Bar Association Judicial
Selection Committee. I participated in a second interview
with the Justice Department in Washington, D.C. where I was
interviewed by a number of people from the Justice Department
and private sector including a law professor with expertise in
constitutional law.
As part of the process, I visited with members of the
Congressional delegation from my state and submitted
additional questionnaires to my state Senators, Kay Bailey
Hutchison and Phil Gramm.
Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
interpreted as asking how you would rule on such case, issue
or question? If so, please explain fully.
No.
Please discuss your views on the following criticism involving
"judicial activism."
The role of Federal judiciary within the Federal government,
and within society generally, has become the subject of
increasing controversy in recent years. It has become the
target of both popular and academic criticism that alleges
that the judicial branch has usurped many of the
prerogatives of other branches and levels of government.
Some of the characteristics of the "judicial activism" have
been said to include:
a. A tendency by the judiciary toward problem-solution
rather than grievance-resolution;
26
796
b. A tendency by the judiciary to employ the individual
plaintiff as a vehicle for the imposition of
far reaching orders extending to broad classes of
individuals;
c. A tendency by the judiciary to impose broad,
affirmative duties upon governments and society;
d. A tendency by the judiciary to impose itself upon
other institutions in the manner of an administrator
with continuing oversight responsibilities.
I believe it is the proper role of the judiciary to provide a
forum for the full and fair adjudication of all issues or
matters which are properly before them. It is not the role of
the judiciary to fashion solutions for a class of people that
are not before the court or to expand or alter the intent of
the law to provide standing for individuals who are not
properly before the court.
My experience both as an attorney and as chair of a Texas
state agency have given me a broad exposure to the relative
roles of different branches and levels of government. Very
often, as chairperson of the Department of Commerce, I was
called upon to expand the statutes governing a particular
issue to fashion a remedy for a particular problem or impose
some broad affirmative duty on state government that was
clearly beyond the legislative intent. In those instances
where I have faced this challenge and I felt that the law on
the issue was vague, unclear or subject to varying
interpretations, I either sought to determine the legislative
intent directly from the legislator or where appropriate,
asked for an opinion from the attorney general. Where neither
of those options has been available to me, I have declined to
take it upon myself or my agency to alter or modify the
legislative intent. I do believe that it is appropriate for
the judiciary to provide relief in individual cases where a
ruling that is consistent with the law would result in a
violation of that individual's Constitutional rights.
27
797
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
Terry Curtis Kern
2. Address: List current place of residence and office
address(es) .
Residence: 401 0 Street SW
Ardmore, OK 73 A 01
Office: 333 West Main, Suite 330
Neustadt Plaza
P.O. Box 1268
Ardmore, OK 73 A 02
3. Date and place of birth.
September 25, 19AA; Clinton, Oklahoma.
4. Marital Status (include maiden name of wife, or husband's
name ) . List spouse's occupation, employer's name and business
address(es) .
Married
Mary Charlene Heinen
Not employed outside the home
5. Education: List each college and law school you have attended,
including dates of attendance, degrees received, and dates
degrees were granted.
Oklahoma State University, September 1962 - July 1966, B.S.
Degree, July 29, 1966.
University of Oklahoma College of Law, September, 1966 - June
1969, Juris Doctorate Degree, June 1, 1969.
798
Employment Record: List (by year) all business or professional
corporations, companies, firms, or other enterprises,
partnerships, institutions and organizations, nonprofit or
otherwise, including firms, with which you were connected as an
officer, director, partner, proprietor, or employee since
graduation from college.
1967 Harrah's, Lake Tahoe, California
1968 Oklahoma Department of Hximan Services,
Newkirk, OK
1969 Teaching Assistant, University of Oklahoma
Law School
1969-70 General Attorney, Bureau of Deceptive
Practices, Division of Compliance, Federal
Trade Commission, Washington, D.C.
1970-86 Partner, Law Firm of Fischl, Gulp, McMillin,
Kern & Chaff in, Ardmore, OK.
1986-1989 General Partner of Kern, Worsham & McPhail
1989-92 General Partner of Kern and Associates
1992-present President, Kern, Mordy & Sperry, P.C.
7. Military Service: Have you had any military service? If so,
give particulars , including the dates, branch of service, rank
or rate, serial number and type of discharge received.
1962-64 Reserve Officer's Training Corps,
Oklahoma State University
Sept. 1969 - Oklahoma Army National Guard, honorable
April 7, 1970 discharge. (transferred to USAR)
Mar. 28, 1970- United States Armv Reserve, Specialist 4;
Aug. 31, 1975 Serial No. 448-42-4820; honorable discharge.
799
8. Honors and Awards: List any scholarships, fellowships,
honorary degrees , and honorary society memberships that you
believe would be of interest to the Committee.
a) Phi Eta Sigma Honorary Scholastic Fraternity, Oklahoma
State University;
b) Teaching Assistant Scholarship, Legal Research,
University of Oklahoma Law School;
c) Phi Delta Phi International Legal Fraternity,
President 1969, University of Oklahoma Law School.
9. Bar Associations: List all bar associations, legal or
judicial-related committees or conferences of which you are or
have been a member and give the titles and dates of any offices
which you have held in such groups.
a) Oklahoma Bar Foundation, Board of Trustees, 1986-1992;
President, 1991;
b) Oklahoma Bar Association
1. Joint Oklahoma State Medical
Association-Oklahoma Bar Association Committee,
1992 - present
2. Civil Procedure Committee, 1992-present
3. District Court Advisory Committee, 1987
A. Legislative Action Committee, 1980-1982
5. Resolutions Committee, 1979
6. Chairman, Insurance Law Section, 1978
7. Chairman, State Law Day Committee, 1976, 1977
c) American Board of Trial Advocates;
d) Sustaining Fellow, Oklahoma Bar Foundation;
e) Legal Institute of Pickens County I.T. (Board of
Directors 1992-present) ;
f) Oklahoma Association of Defense Counsel
(Board of Governors, 1981-198A) 1972-199A;
800
g) Southern Oklahoma Legal Institute (President 1972) ;
h) American Academy of Hospital Attorneys;
i) Defense Research Institute, Inc., 1986-1994;
j) Federation of Insurance and Corporate Counsel,
1986-1994;
k) University of Oklahoma College of Law Association;
1) American Bar Association;
m) Faculty member of CLE Institute on "Voir Dire, Opening
Statements and Closing Arguments" for the Oklahoma Bar
Association Commission on Continuing Legal Education,
1988;
n) Faculty member of CLE Institute on the Oklahoma
Discovery Code sponsored by Oklahoma Bar Association
Commission on Continuing Legal Education, 1982;
o) Faculty member. Trial Tactics Seminar, University of
Oklahoma Continuing Legal Education Program and Oklahoma
Association of Defense Counsel, 1975;
10. Other Memberships; List all organizations to which you belong
that are active in lobbying before public bodies. Please list
all other organizations to which you belong.
I am not aware of any of these organizations being actively
involved in lobbying activities.
a) Southern Oklahoma Memorial Hospital, Trustee
1985-present; Chairman of the Board 1989-1991;
currently Trustee and General Counsel;
b) Ardmore Development Authority, Trustee 1988-present ;
Vice-chairman 1990;
c) Ardmore Chamber of Commerce, Board of Directors, 1975,
1980-1983;
801
d) St. Philip's Episcopal Church;
e) Boy Scouts of America;
f) Perry Maxwell Intercollegiate Association;
g) Dornick Hills Golf and Country Club.
11. Court Admission: List all courts in which you have been
admitted to practice, with dates of admission and lapses if any
such memberships lapsed. Please explain the reason for any
lapse of membership. Give the same information for
administrative bodies which require special admission to
practice .
a) Oklahoma Supreme Court, September 3, 1969;
b) United States District Court for the Eastern
District of Oklahoma, October 24, 197A;
c) United States District Court for the Western
District of Oklahoma, February 1, 1979;
d) United States Court of Appeals for the Tenth Circuit,
January 16, 1979;
e) United States District Court for the Northern
District of Oklahoma, September 6, 1993.
12. Published Writings: List the titles, publishers, and dates of
books , articles , reports , or other published material you have
i^itten or edited. Please supply one copy of all published
material not readily available to the Committee. Also, please
supply a copy of all speeches by you on issues involving
constitutional law or legal policy. If there were press
reports about the speech, and they are readily available to
you, please supply them.
a) 1982 presentation at the Oklahoma Discovery Program
Seminar on Interrogatories (copy attached) ,
802
b) 1975 presentation at the University of Oklahoma Law
School on Voir Dire, Opening Statement and Closing
Argument (copy attached).
13. Health: What is the present state of your health? List the
date of your last physical examination.
Excellent
Date of last physical examination: September 30, 1993.
lA. Judicial Office: State (chronologically) any judicial offices
you have held, ^whether such position was elected or appointed,
and a description of the jurisdiction of each such court.
Appointed by the Supreme Court of Oklahoma in September of
1991 to serve as one of three judges on Panel XXI of the
Court of Appeals. By statute the Oklahoma Supreme Court may
convene additional divisions of the Court of Appeals to
assist with its docket. Each temporary division consists of
three judges and may include retired judicial officers and
lawyers having the qualifications of a district judge. This
particular panel was assigned three cases for decision. Oath
of office and loyalty oath were required.
15. Citations : If you are or have been a judge, provide: (1)
citations for the ten most significant opinions you have
written; (2) a short summary of and citations for all appellate
opinions where you decisions were reversed or where your
judgment was affirmed with significant criticism of your
substantive or procedural rulings; and (3) citations for
significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such
opinions. If any of the opinions listed were not officially
reported, please provide copies of the opinions.
Ramakrishna, et al v. ARW Exploration Corp., No. 75529
(Decision and Order Denying Petition For Rehearing attached)
803
16. Public Office: State (chronologically) any public offices you
have held, other than judicial offices, including the terms of
service and whether such positions were elected or appointed.
State (chronologically) any unsuccessful candidacies for
elective public office.
Appointed to the Housing Board of Appeals of the City of
Ardinore and served as Chairman from 1979-1981.
17 . Legal Career:
a. Describe chronologically your law practice and
experience after graduation from law school including:
1. whether you served as clerk to a judge, and if so,
the name of the judge, the court, and the dates of
the period you were a clerk;
1 did not serve as a clerk.
2. whether you practiced alone, and if so, the
addresses and dates;
I have not practiced alone.
3. the dates, names and addresses of law firms or
offices, companies or governmental agencies with
which you have been connected, and the nature of
your connection with each;
(a) 1969-1970 General Attorney,
Bureau of Deceptive Practices,
Division of Compliance, Federal
Trade Commission, Washington, D.C.
(b) Nov. 1970-
Oct. 1986 Fischl, Gulp, McMillin, Kern &
Ghaffin
100 E Street SW
P.O. Box 1766
Ardmore, OK 73A02
Senior Partner.
804
(c) In October of 1986, I started the law firm of
Kern, Worsham & McPhail and was the General
Partner of that firm located at Suite 330,
Neustadt Plaza, Ardmore, Oklahoma. That firm
was later called Kern and Associates and has
now evolved into the firm of Kern, Mordy &
Sperry, P.C., located at the same address. I
am the President and majority shareholder of
this professional corporation.
1. What has been the general character of your law
practice, dividing it into periods with dates if its
character has changed over the years.
I have had a general law practice over the past 23
years, with emphasis on litigation, including
personal injury, products liability, insurance
defense, medical malpractice, commercial litigation,
banking matters and real estate law.
From approximately 1970 to 1975, I was primarily
involved in personal injury defense, family practice
and some court appointed criminal matters. From
1975 to 1986, in addition to personal injury defense
and products liability, I was also involved in oil
and gas and real estate title work, contracts,
collection and banking law. From 1986 to present,
my practice has continued to be general in n?ture
but with more emphasis on products liability,
medical malpractice, business litigation and
corporate law. Over the past three years, health
care law has become an additional aspect of my
practice and I am presently General Counsel for
Memorial Hospital of Southern Oklahoma.
2. Describe your typical clients and mention the areas,
if any, in which you have specialized.
Typical clients would include insurance companies
with a variety of claims, including accident, health
and life companies and product manufacturers. Other
805
clients would include banking institutions, real
estate companies, small businesses and individuals.
I have specialized in personal injury litigation
during the majority of my years in practice. Over
the past three years, I have also specialized in
health care law.
1. Did you appear in court frequently, occasionally, or
not at all? If the frequency of your appearances in
court varied, describe each such variance, giving
dates .
Frequently.
2. What percentage of these appearances was in:
(a) federal courts;
(b) state courts of record;
(c) other courts.
(a) Ten (lOZ) percent in federal court;
(b) Ninety (90Z) percent in state courts
of record;
What percentage of your litigation was i
(a) civil;
(b) criminal.
(a) In excess of ninety-five (95Z) percent
civil;
(b) Five (5Z) percent or less criminal.
State the number of cases in courts of record you
tried to verdict or judgment (rather than settled) ,
indicating whether you were sole counsel, chief
counsel, or associate counsel.
806
Approximately 65 to 70 jury trials.
Non-jury cases - over 200.
Jury Trials :
Six (6) as associate counsel or
co-counsel;
Fifteen (15) as chief counsel;
Approximately forty-five (A5) as sole
counsel.
Non-jury Trials:
Ninety (90%) percent would be as sole
counsel.
5. What percentage of these trials were:
(a) jury;
(b) non-jury.
(a) Thirty percent (30%) jury;
(b) Seventy percent (70%) non-jury.
18. Litigation: Describe the ten most significant litigated
matters wHich you personally handled. Give the citations, if
the cases were reported, and the docket number and date if
unreported. Give a capsule summary of the substance of each
case. Identify the party or parties whom you represented;
describe in detail the nature of your participation in the
litigation and the final disposition of the case. Also state
as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or
judges before whom the case was litigated; and
(c) the individual name, addresses, and telephone
nxjmbers of co-counsel and of principal counsel for
each of the other parties.
1 . Gene Dan Hull and Linda Stevens Hull, Parents and Next of
Kin of Lacey Dawn Hull, Deceased, plaintiffs, vs. Jim Morris, d/b/a
3M Transportation, Jerry Lee Beaty, Acceptance Insurance Company an^T
10
807
Mack Trucks, Inc., defendants, originally filed as No. CJ-91-1761 in
the District Court ot Oklahoma County, and removed to the Western
District of Oklahoma and docketed as No. CIV-91-568-A. Notice of
Removal was filed April 25, 1991. This case involved a truck-school
bus collision west of Madill, Oklahoma that injured a number of
children and caused the death of Lacey Hull, eight years old. Some
fourteen suits involving children and the bus driver were eventually
settled. Lacey Hull's case was tried before the Honorable Wayne E.
Alley, United States District Judge for the Western District of
Oklahoma, for seven (7) days with a verdict returned on March 6,
1992, in the amount of 2.6 million dollars on behalf of the
plaintiffs. The case was unusual in that it involved allegations of
negligence against two of the parties and mixed allegations of both
negligence and manufacturer's products liability against Mack
Trucks, Inc. The allegations were that the Mack truck was defective
in that it was unstable and had a tendency to bounce up and down and
dart left or right, taking it in this instance across the center
line of the roadway. Mack Trucks, Inc. was represented by James H.
Bellingham and John J. Love of McClelland, Collins, Bailey, Bailey &
Bellingham, 1100 Colcord Building, 15 North Robinson, Oklahoma City,
Oklahoma, phone 405/235-9371. Defendant Jim Morris, d/b/a 3M
Transportation, was the owner of the truck and was charged with
knowledge of the defect in the truck, violation of certain
Department of Transportation regulations and knowingly putting
drivers on the road without enough rest. Morris and Acceptance
Insurance Company were represented by A. T. Elder, Jr., Stewart &
Elder, 1329 Classen Drive, Oklahoma City, OK, phone A05/272-9351 .
Through Acceptance Insurance Co., I represented the truck driver,
Jerry Lee Beaty. It was alleged that Beaty had not slept in some 24
hours prior to the accident, was aware of the tendency of the truck
and likely fell asleep prior to the accident, allowing the truck to
veer left of center, shearing off the side of the school bus. Beaty
was also charged with negligent homicide in Marshall County. We
also defended the criminal action. Burck Bailey and K. Nicholas
Wilson of Fellers, Snider, Blankenship, Bailey & Tippens represented
the plaintiffs. Their address is 2400 First National Center, 120
North Robinson, Oklahoma City, Oklahoma, phone 405/232-0621.
Mitchell Sperry, of my office, and I prepared the case for trial and
I acted as chief counsel during the trial. The case involved
literally hundreds of exhibits and documents, numerous expert
witnesses with regard to the Mack truck. National Transportation
Safety Board investigators, cross-claims by all of the defendants
and efforts at intervention by several other proposed plaintiffs.
11
808
2 . Lawrence Young and Willie Mae Young, plaintiffs, vs.
Stanley Anderson, Administrator of the Estate or Virgie White,
Deceased; and Pate Corporation, an Oklahoma Corporation, d/b/a The
Madill Record and The Texoman, Case No. C-91-13, in the District
Court oT Marshall County, Oklahoma . Virgie White, a waitress at
Lake Texoma Lodge, had gained some notoriety as being the oldest
working waitress in the United States. She had appeared on the
Johnny Carson show, as well as numerous local television and radio
talk shows. She also wrote a weekly column for The Madill Record
and The Texoman, two newspapers owned by the Pate Corporation of
Madill, Oklahoma. Ms. White was involved in an auto accident in
which she became confused while entering a construction area and
struck a State Highway Department flagman, severely and permanently
injuring him. It was alleged Virgie White was on her way to the
newspaper to deliver her column and was the agent of the Pate
Corporation which would render Pate Corporation liable for all of
the injuries. Ms. White died prior to the trial and, therefore, one
of the defendants was her estate. The case was tried June 23
through June 25, 1992, before the Honorable John Scaggs. Judge
Scaggs sustained a demurrer to the evidence on behalf of the Pate
Corporation and the jury returned a verdict against the estate of
Virgie White in the total amount of $675,000.00. The Trial Court's
sustaining of the demurrer to the evidence has been appealed by the
plaintiff to the Supreme Court of the State of Oklahoma, Case No.
80,023 and assigned to the Oklahoma Court of Appeals. In a decision
released for publication January 11, 199A, the Oklahoma Court of
Appeals affirmed the decision of the trial court. Plaintiffs'
Petition For Rehearing was denied March lA, 1994. Plaintiffs may
file a Petition For Certiorari to the Oklahoma Supreme Court within
twenty days .
A number of significant legal questions were presented in this
case, including whether one who volunteers services without an
agreement or consideration may be an agent of the one accepting the
services; whether prior knowledge that someone has been involved in
a number of automobile accidents makes the principal responsible for
a subsequent accident; and whether prior knowledge of impaired
vision makes the principal liable for a subsequent accident. Many
small newspapers make use of volunteer writers who are neither paid
by the paper nor considered employees of the newspaper. The
Oklahoma Press Association and the National Press Association
expressed interest in this case and concern that newspaper owners
might be considered the employers of these volunteers or "country
12
809
correspondents". Plaintiffs are represented by James M. Hays, III,
Merritt & Rooney, Inc., P.O. Box 60708, Oklahoma City, OK, phone
A05/236-2222 . The estate of Virgie White was represented by Mark A.
Wolfe, One North Hudson, Suite 200, Oklahoma City, OK, phone
A05/272-0322 . I represented the defendant Pate Corporation,
publisher of The Madill Record and The Texoman. I was lead counsel
in the trial of the case and also prepared the case for trial.
Mitchell D. Sperry of my office sat second chair during the trial.
3 . John A. Chatham, plaintiff, vs. The Estate of Claude S.
Sullivan, defendant. No. C-89-27A, District Court of Carter County,
Oklahoma . This case was filed in June of 1989, and tried before the
Honorable John H. Scaggs, District Judge, March 15, 1990, through
March 19, 1990. The jury found in favor of the plaintiff in the
amount of $40,000.00. There was no question as to liability as the
defendant, Claude Sullivan, was attempting to play a prank on his
friend, John Chatham, who was sleeping in his car outside a
restaurant. Sullivan lost control of his car and collided with
Chatham's vehicle. Plaintiff alleged serious injuries, including
epilepsy, brain damage, post concussive syndrome and post traumatic
syndrome. In excess of twenty-four (2A) witnesses were called.
Plaintiff's lowest offer of settlement was $300,000.00, and
defendant offered $40,000.00 at a Settlement Conference several
weeks prior to trial. The case was significant due to the type of
injuries alleged and the preparation necessary to defend against
allegations of epilepsy and brain injury. The case was also
significant in that plaintiff's claim for attorney fees was appealed
and decided by the State of Oklahoma Court Appeals, Division II,
Case No. 75-985, by Decision dated April 21, 1992. The Court of
Appeals noted that the Oklahoma Supreme Court had not addressed the
issue of whether a party who enters into an out-of-court settlement
of a claim for property damage is the "prevailing party". The Court
of Appeals, following the Tenth Circuit Court of Appeals, found that
under Oklahoma law, a final judgment is a prerequisite to being a
prevailing party. The property damage was paid prior to trial and
plaintiff s attorney accepted the check but after the verdict moved
for attorney fees as the prevailing party. I represented the estate
of Claude S. Sullivan, deceased, and the Co-Personal
Representatives, Joe D. Sullivan and Jimmy C. Sullivan, at both the
trial and during the appeal. J. H. Wilson of my office assisted in
preparing the case and sat second chair during the trial. James A.
Clark, 130 B. Street SW, Ardmore, Oklahoma, phone 405/223-2020,
represented the plaintiff, John Chatham.
13
810
4 . Nadia Jester, Special Administratrix of the Estate of Sammy
K. Jones, plaintitt, vs. Joe Brown Company, I^ic . , defendant, Case
No"^ C-88-580, rn EKi District Court ol Carter County, DFlahoma .
This case involved an accident north of Paris , Texas in which a Joe
Brown Company truck struck a van driven by Sammy Jones and killed
him. It was a classic wrongful death case in which the accident was
fully reconstructed by accident reconstruction experts on both
sides, including photographs, videos, charts, graphs, etc. Our
defense on behalf of Joe Brown Company was based upon evidence from
electrical expeits that the lights on the van were not working
properly at the time of the accident, that it was totally dark and
these conditions, combined with the dark color of the van, would
have made it virtually impossible for the Joe Brown driver to have
seen this van stopped on the highway. We coordinated with Texas
attorneys for research on the apolicability of Texas Statutes, as
well as researching applicable Oklahoma law. The case was
complicated by the mother of the deceased claiming she had a heart
attack due to the stress of her son's death. Diane Worsham, who was
then working for my office, helped prepare this case and I acted as
lead counsel. The case was tried in the District Court of Carter
Countv before the Honorable Lee Card from August 24, 1989, to August
26, 1989, and resulted in a defendant's verdict. Plaintiff's
attorney was Rex K. Travis, 500 Colcord Drive, Oklahoma City, OK,
phone 405/236-5400, and Robert W. Hayden , Ralston, Buck, Hayden &
Diehl, 625 NW 13th Street, Oklahoma City, OK, phone 405/528-0004.
5 . The State of Oklahoma, ex rel, Department of
Transportation, plaintiff, vs. Sam Daube, et al~ C-87-170 , In the
District Court of Carter County, Oklahoma . This was a condemnation
action by the State of Oklahoma to condemn property belonging to Sam
Daube and Jerry Putman for the proposed Twelfth Street exit onto
1-35 in Ardmore, Oklahoma. The case is significant in that it
resulted in one of the largest condemnation verdicts on behalf of a
landowner in Carter County, a sum of $525,500.00, plus attorney fees
and costs in excess of $42,000.00. It is further significant in
that it indicates the ability of a trial lawyer to work in
unfamiliar areas. I had never seen nor tried a condemnation case
prior to this case. The case involved extreme conflicts in expert
testimony on real property evaluation, as well as some interesting
trial strategy. Preparation included record checking, location of
comparable properties, and preparation of charts and exhibits for
presentation to each juror. The case was tried in Carter County,
Oklahoma before the Honorable Gary L. Lumpkin, District Judge. The
14
811
verdict was returned on March 2, 1988. The State of Oklahoma was
represented by E. H. Purcer, Department of Transportation, 200 NE
21st Street, Oklahoma City, OK, phone 405/521-2681. The property
owner, Sam Daube, was represented by Kenneth W. Turner, Turner,
Turner & Braun, 1319 Classen Drive, Oklahoma City, OK, phone
405/236-1646, and myself. Mr. Turner and I shared both preparation
and trial responsibilities equally.
6. American Fertilizer Specialists, Inc. , plaintiff , vs . A. J.
Wood, Jr., defendant. No. C-78-31, in the District Court of Johnston
County, Oklahoma. Plaintiff, a dealer in agricultural fertilizer,
brought suit on open account for fertilizer sold and delivered to
Mr. Wood for use on his ranch property. Defenses raised included
breach of implied warranty of fitness for a particular purpose and
breach of an implied warranty of merchantability under the Uniform
Commercial Code. Jury was waived and the case was tried to the
Honorable H. Leo Austin in the District Court of Johnston County,
Oklahoma. Clyde Stallings, 132 North Third Street, Durant,
Oklahoma, phone 405/924-2997, represented the plaintiff fertilizer
company and I was sole counsel for the defendant, A. J. Wood,
through preparation, trial and subsequent appeal of the case. The
case stands for several legal propositions under the Uniform
Commercial Code, including timeliness of notice of breach of
warranty; whether buyer's notification to seller of breach may be
oral or written; use of circumstantial evidence to prove breach; and
the concept of merchantability within the warranty of
merchantability. Judge Austin entered judgment in favor of the
defendant, A. J. Wood, Jr., and the Supreme Court, in an Opinion by
Justice Lavender, affirmed the decision on August 6, 1981. The
Supreme Court citation for this case is 635 P. 2d 592.
7. Reeta Swafford v. Jimmy Lee Nave, District Court, Carter
County, C-75-206. This case involved an automobile collision at the
intersection of a street and U.S. Highway 70 in the town of Lone
Grove, Oklahoma. Plaintiff sued for $947,589.60, alleging among
other injuries, hemorrhaging and retinopathy in both eyes resulting
in total blindness. Plaintiff was a 29 year old woman at the time
of the accident who was rendered totally blind and unable to earn
any income .
This case involved all of the normal trial problems associated
with a difficult personal injury lawsuit. Of particular
significance was the complex medical testimony concerning
15
812
plaintiff's injuries. To properly try this case it was necessary
that I do extensive research in areas in which I had no prior
experience, including juvenile-onset diabetes, diabetic retinopathy,
opthalmology and the latest advances in micro-surgery. These latest
advances included laser photocoagulation, vitrectomys and
cyclocryo-therapy. Through technical research, conferences with
ophthalmologists and conferences with diabetic specialists, I was
able to learn enough about juvenile-onset diabetes and diabetic
retinopathy to intelligently examine and cross-examine medical
witnesses. Finally, T was able to condense this complicated
material and present it to a jury in such a way that they could
understand its significance and make their decision based upon the
evidence .
I represented the defendant, Jimmy Lee Nave, of McAlester,
Oklahoma, and Government Employees Insurance Company. I was sole
counsel in this case which was tried for four days, from February 8
through February 11, 1977, and resulted in a unanimous jury verdict
in favor of the defendant. The case was tried in the District Court
for the Twentieth Judicial District, Ardmore , Carter County,
Oklahoma, before Judge Earl LeVally. The case was appealed by the
plaintiff but affirmed by the Court of Appeals, Division II, in an
opinion by Judge Neptune.
Counsel for the plaintiff was Mr. Ted Pasley of Bickford,
Pasley & Farabough, "B" and First Street, SW. , P.O. Box 1027,
Ardmore, OK 7340? (A05/223-5566) ,
8. Tamsey E. Freeman ys . Ben C. Crump and Robert W. Crump,
Co-Executors of the Estate ot W. E. Crump, Deceased, No. P-7A-I07,
Garvin County, Oklahoma . This case involved a will contest and my
client, Tamsey Freeman, the testator's granddaughter, sought her
intestate share of the estate as a pretermitted heir. She was one
of three grandchildren but was left out of her grandfather's will
completely and was not mentioned, either by name or by class. The
trial judge. Judge Joe D. Shumate, District Court, Garvin County,
ruled that Mrs. Freeman was a pretermitted heir and entitled to
inherit her one-third part of her grandfather's estate. The
co-executors of the estate, Mrs. Freeman's brothers, appealed from
the decision. In a case of first impression. Justice Marion Opala,
writing for the Oklahoma Supreme Court, determined that Oklahoma
follows the Missouri prototype statute which benefits children not
named or provided for in the will as opposed to the
16
813
Massachusetts-type statute which permits extrinsic evidence to show
either presence or absence of intention to disinherit. The trial
court's judgment in favor of Mrs. Freeman was affirmed by the
Supreme Court on May 20, 1980, and rehearing denied July 21, 1980.
Alan Agee of Garvin, Agee & Carlton, 600 W. Paul Avenue, Pauls
Valley, Oklahoma, phone 405/238-5559, represented the Crump Estate,
along with George Miesel, 100 East Paul Avenue, Pauls Valley,
Oklahoma, 405/238-5564. I represented Mrs. Freeman from inception
of the case through the trial and through the appeal. The Court's
opinion may be found at 614 P. 2d 1096.
9 . Kenneth W. Hendrix and Bettie J. Hendrix, plaintiffs, vs.
LeWayne E. Jones, d/b/a L. £• Jones Production Company, defendant,
C-81-69, District Court of Carter County, Oklahoma. Plaintiffs sued
L. E. Jones Production Company for allegedly allowing diesel gel to
spill from a reserve pit onto plaintiffs' adjacent pasture land.
Plaintiffs sued for $175,000.00 in damages and $150,000.00 punitive
damages. Plaintiffs were represented by Mr. Harry Bickford of
Wallace, Bickford, Pasley & Farabough, 29 B. Street SW, Ardmore,
Oklahoma, phone 405/223-'5566. I represented the defendant, L.E.
Jones Production Company, throughout the case and subsequent appeal.
The case was tried before the Honorable Woodrow George in the
District Court of Carter County for six days, with the jury
returning a verdict on April 20, 1983, in favor of the plaintiffs
for $1,600.00 actual damages. The case involved extensive
preparation, including arranging for chemical testing of substances
alleged to have been toxic or hazardous. Aerial photographs were
obtained, downstream ponds were tested, and the entire closing of
the reserve pit was videotaped. In excess of 300 exhibits were
introduced, primarily photographs, and in general the case was tried
to the hilt by both sides. Although settlement was attempted,
plaintiff would never agree to accept less than $100,000.00.
Plaintiff appealed the jury verdict and Judge Charles Wilson,
writing for the Court of Appeals Division 3, affirmed the verdict in
an opinion not for publication filed July 31, 1984. The appeal was
based on certain damage instructions given to the jury, including
applicability of Corporation Commission Rules and also plaintiffs
claim that the Court erred by permitting the jury to view the
premises. Petition For Writ of Certiorari was denied by the
Oklahoma Supreme Court.
17
814
10 . Henri Currv, plaintiff, vs. The City of Ardmore , Oklahoma,
defendant, C-B9-14A, District Court oT Carter County , Oklahoma.
Henri Curry was arrested by police officers for the City of Ardmore
on minor charges. However, due to the location and time of evening,
the arrest provoked an altercation with close to 100 bystanders.
Curry claimed the arrest was illegal and sued the City for police
brutality, assault and battery, inflicting racial slurs, and
intentionally inflicting emotional distress. James Clark, 130 B
Street SW, Ardmore, Oklahoma, phone 405/223-2020, represented the
plaintiff, Henri Curry, and I represented the City of Ardmore. The
case was filed March 22, 1989, and tried before Judge Thomas Walker,
District Court of Carter County, and jury verdict entered on
December 15, 1989, finding the defendant liable to plaintiff for
damages in the amount of $3,000.00. This case generated
considerable local publicity, both newspaper and television, due to
the allegations of racial bias, special police emphasis on the
northeast part of Ardmore, and allegations that the police
department frequently beat prisoners in the elevator going from the
garage to the city jail. The trial court sustained defendant's
demurrer to the evidence as to plaintiff's claim of unlawful arrest
and plaintiff's claim for lost wages. However, the jury apparently
did not believe that an altercation between the plaintiff and one of
the police officers was entirely unprovoked as the police officers
had testified.
This case was significant in that it represented one of a
series of cases involving the Ardmore City Police Department. Even
though the verdict was small, it prompted the City Manager and
police department officials to take a critical look at in-house
training programs and community relations . The City Manager
instituted a review of all police programs calling for special
emphasis in any one part of town, and the officer in question was
asked to resign. As a result of this case and several others
handled by my firm, I was asked by the City Manager to assist in
evaluating the city police force and its training, particularly in
the areas of community relations and racial sensitivity, as well as
the handling of prisoners. We were able to report to the City
Manager with a number of suggestions and ideas for new programs and
approaches .
18
I
815
19. Legal Activities: Describe the most significant legal
activities you have pursued, including significant litigation
which did not progress to trial or legal matters that did not
involve litigation. Describe the nature of your participation
in this question, please omit any information protected by the
attorney-client privilege (unless the privilege has been
waived. )
a. A significant legal activity which did not involve
litigation was the acquisition of Ardmore Adventist Hospital by
Memorial Hospital of Southern Oklahoma. First as Chairman of
Memorial Hospital of Southern Oklahoma and later as General Counsel
for Memorial, I was primarily responsible for the acquisition of
Ardmore Adventist Hospital, a competing hospital which was located
literallv across the street from Memorial, including preparation of
all lega"^! documents, contracts and notices. By February of 1992,
the acquisition had been completed at a cost of several million
dollars. Brad Brickell of Mahaffey & Gore, Suite 1100, 211 N.
Robinson Avenue, Oklahoma City, Oklahoma, phone 405/236-0478,
represented the Oklahoma Conference of Seventh Day Adventists and
the Ardmore Adventist Hospital. This acquisition has already been
responsible for tremendous growth at Memorial Hospital and an influx
of new programs and phvsicians. I also represented the hospital
along with bond counsel 'before the rating agencies in New York City
in November of 1992, and helped present a revenue bond program for
expansion of facilities and purchase of new equipment totaling
$25,000,000.00. The hospital has now completed the only cardiac
catheterization lab within 100 miles, as well as a new
gastroenterology lab and radiation department.
I am particularly pleased not only with the negotiations and
legal work involved but also with the knowledge of the tremendous
amount of good that will come from this expanded facility in the
future .
b. Products Liability Cases. I have been involved in a number
of products liability cases which, due to the complexity, number of
defendants, and extent of injuries, rarely proceed to trial. One
example is the Estate of Clomer Anderson, plaintiff, vs. Propane
Services, Inc., et al; No. C-87-378 in the District Court of Carter
County, Oklahoma. This case was one of the early General Motors
saddle gas tank rupture cases. Clomer Anderson was severely burned
19
816
in a fire which erupted in his truck as he was traveling on 1-35
near Ardmore. The truck in question had a dual gasoline and propane
fuel system. There were various causation theories which accounted
for the fact of seventeen separate defendants, including General
Motors. A formidable amount of discovery was conducted, including
fire experts, metallurgical experts, propulsion system experts, wind
experts, automotive design experts, etc. Video tapes of various
experiments were conducted to show feasibility of various theories.
The case was finally settled in January of 1990, for 1.25
million dollars, after a number of marathon settlement conferences
before Judge Thomas Walker of the District Court of Carter County.
I represented the defendant Gas Equipment Company, supplier of
portions of the propane system. Other attorneys involved included
John Baum of Oklahoma City for the plaintiff, Jim Golden of Oklahoma
City for Gates Rubber Company, Bill Greenwood of Oklahoma City for
Beam Products, Jim Jennings of Oklahoma City for General Motors,
Earl Mills of Oklahoma City for Bill Welborn, d/b/a Propane
Services, Charles Watts of Oklahoma City for Colt Industries, Holley
Automotive Division, Kenneth R. Webster of Oklahoma City for Fisher
Controls, Inc., and John Wheatley of Yukon for Propane Services,
Inc .
c. Computer Generated Video Re-enactments. I was one of the
first attorneys in southern Oklahoma to use computer generated video
re-enactments to demonstrate certain aspects of a case. The first
time was in a case in Atoka County, Rawlins v. Gist, C-84-A8, a
car-truck accident south of Atoka, Oklahoma. The computer
re-enactment was designed to show the position of the vehicles,
relative speeds and the fact that we believed the plaintiff's
vehicle pulled across two lanes of traffic in front of defendant's
truck and caused the accident. Wilson Jones of Tulsa represented
the plaintiff. I represented the trucking company and Cline Young
of Stillwater, Oklahoma created the video re-enactment.
I used a Cline Young re-enactment again in the case of Morris
v. Duncan Ford-Lincoln-Mercury, Inc., C-87-355E, District Court of
Stephens County. The case involved the death of the Mayor of
Comanche, Oklahoma, who was riding in the back of a pickup and
retrieving flags from a city-wide celebration. Rick Rodgers of
Duncan represented the plaintiff widow. As the pickup entered the
highway south of Comanche , the Mayor was thrown from the back of the
pickup and was immediately struck by an auto driven by an employee
20
817
of Duncan Ford. The video re-enactment was used to demonstrate how
little time the driver of the car had to react to this situation.
The computer re-enactment was responsible for a favorable settlement
prior to trial.
I have also used video re-enactments which were not computer
generated, most recently in a products liability case involving an
allegedly defective Coca-Cola bottle carrier. The case was W. E.
Roberts v. Cyanede Plastics, Inc., Great Plains Coca-Cola Bottling
Company and Coca-Cola Bottling Company of Ardmore , C-91-102,
District Court of Love County, Oklahoma. I represented the
manufacturer of the bottle carrier, Cyanede Plastics, Inc. I was
able to settle during the early stages of the trial primarily due to
a video re-enactment demonstrating a defect in the design and not
the manufacture of the carrier. Coca-Cola continued through several
days of trial before settling for approximately three times what my
client paid. James Clark of Ardmore represented the plaintiff and
Brent Bahner of Ardmore represented Coca-Cola.
21
818
II. FINANCIAL DATA ANT> CONFLICT OF INTEREST (PUBLIC)
1. List sources, amounts and dates of all anticipated receipts
fron deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive
from previous business relationships, professional services,
firm memberships, former employers, clients, or customers.
Please describe the arrangements you have made to be
compensated in the future for any financial or business
interest.
I expect to receive from my law firm, my proportionate part of
accounts receivable and investments, as well as work in process.
The remaining members of my firm and I are presently working on a
written agreement which would basically provide for the purchase of
my stock in the firm for an amount based on a percentage of the
gross collected billings over a period of five years. There are no
other deferred income arrangements, options or uncompleted contracts
which would benefit me. I still own a portion of an office building
with my former law firm, as well as one-half of an apartment house
with a former partner. However, I do not anticipate any particular
future benefits unless these properties are sold.
2. Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the categories of
litigation and financial arrangements that are likely to
present potential conf licts-of-interest during your initial
service in the position to which you have been nominated.
I will follow the guidelines of the Code of Judicial Conduct
with regard to any potential conflict of interest. I anticipate few
potential conflicts as my law firm does not regularly practice in
the Northern District of Oklahoma and I have few clients with
interests within the Northern District. Should my firm appear
before me within the five year time period in which it is
anticipated my stock will be purchased, then I would immediately
advise the parties and recuse. In the event a company appears
22
819
before me in which I own stock or have a financial interest, I would
recuse from the case. In cases involving direct actions against
insurance companies I have represented in the past or other major
clients, I would disclose this past representation to the parties to
determine if there is any objection to my hearing the case. Upon
objection, I would either recuse or, if the objection appeared to be
without merit or based on other factors, I would refer the matter to
the Chief Judge of the District.
Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during your
service with the court? If so, explain.
No.
A. List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more. (If you prefer to do so,
copies of the financial disclosure report, required by the
Ethics in Government Act of 1978 may be substituted here.)
See attached copy of Financial Disclosure.
5. Please complete the attached financial net worth statement in
detail (Add schedules as called for) ,
Attached.
23
820
6. Have you ever held a position or played a role in a political
campaign? If so, please identify the particulars of the
campaign, including the candidate, dates of the campaign, your
title and responsibilities.
I have never held a position or played a formal role in a
political campaign. However, I have been involved in numerous
political campaigns as a supporter. These campaigns would include,
but not be limited to, the following: Bill Clinton's 1992 campaign
for President; Senator David Boren's U.S. Senate campaigns; Cody
Graves 1992 campaign for State Corporation Commissioner; David
Walters' 1990 campaign for Governor.
2A
Sv>1
GtN7.KAi. (PUBLIC)
1. An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some time to participate in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances and
the amount of time devoted to each.
Carter County, Oklahoma has three separate court appointed
attorney lists, including criminal appointments, guardian ad litem
and juvenile appointments. I have voluntarily served on one or more
of these lists for the past twenty-three years. For the past
approximately ten years, I have been on the court appointed list
for guardian ad litems for minor children involved in abuse or
parental neglect. 1 average six to ten assigned cases per year.
Some of the cases last a number of years and until the child reaches
maiority. Serving on these lists is basically pro bono as
remuneration from the Court Fund is extremely limited. I have also
encouraged the lawyers working for me to participate and take their
share of court appointments .
I am a member of the pro bono attorney panel of Legal Aid of
Western Oklahoma. I have worked with and taken referrals from the
local office of Legal Aid of Western Oklahoma.
As in any small town law practice, we donate legal services to
organizations involved in helping the disadvantaged, such as
Southern Oklahoma Ambulance Service, Southern Oklahoma Mental Health
Services, Inc., and CASA. I have served on the board of two of
these organizations and given many hours of free legal advice.
There are also specific clients for whom I have provide free
legal services because of their particular situations. Examples
would include a woman with three children whose husband is
approximatelv my age and suffered a severe stroke some five years
ago. I have' continued to represent the family over the past several
years without charging for my time. I have prepared all of the
estate planning for this family, prepared guardianship proceedings
and been involved with several problems of each of the children.
25
822
Another example is a widow whose husband I represented once through
his insurance company. I have continued to provide either
completely free services or much reduced fees in recognition of her
economic condition. She is concerned over the slightest problem and
visits my office at least on a monthly basis. I helped her sell a
number of residential lots in Gene Autry, Oklahoma that were barely
worth the taxes being paid. The services involved would have cost
more than the money she received had I charged her. Over the years
there have been numerous other examples. I have had a number of
clients, particularly divorce clients, unable to pay our fees and
because of their financial situation these fees were written off. I
have never brought suit to collect a legal fee.
2. The American Bar Association's Commertary to its Code of
Judicial Conduct states that it is inappropriate for a judge to
hold membership in any organization that invidiously
discriminates on the basis of race, sex, or religion. Do you
currently belong, or have you belonged, to any organization
which discriminates -- through either formal membership
requirements or the practical implementation of membership
policies? If so, list, with dates of membership. What you
have done to try to change these policies?
I do not belong to any organization which discriminates through
either formal membership requirements or the practical
implementation of membership policies. In fact, I have helped some
organizations change their policies. I belonged to the Ardmore
Rotary Club from approximately/ 1974 to 1987. I supported the
opening of the membership to women. At the present time there are
several women members of the Ardmore Rotary Club.
Sometime after joining Dornick Hills Golf and Country Club in
the early 1970s, I was involved in reviewing and revising a portion
of the By-Laws. I came across some language that was without
question discriminatory. I reported this to my firm and
subsequently to the Board of Directors . I prepared certain
amendments to the By-Laws and this language was removed at the next
annual meeting of stockholders. When I was President of the club in
1981, I changed prior policies and allowed outside groups to use the
club for their activities. This included an African-American dance
26
I
823
club called The After Six Club which used Dornick Hills' facilities
for their winter formal. Although there are Native American,
Hispanic and Asian members of Dornick Hills, there are no
African-American members . I have tried to help recruit
African-American members and continue to do so. Dornick Hills is
not an exclusive country club and, in fact, various membership
drives have been advertised in the local newspaper.
3. Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts? If
so, did it recommend your nomination? Please describe your
experience in the entire iudicial selection process, from
beginning to end (including the circumstances which led to your
nomination and interviews in which you participated) ,
A selection commission recommended my name, along with several
others , to Senator David Boren for possible recommendation to the
President. Initial notification of a vacancy on the federal bench
appeared in the Oklahoma Bar Journal in February of 1993. I
requested an application and received a list of the names of the
Federal Judicial Advisory Committee, along with a questionnaire
patterned after a questionnaire developed by the Senate Judiciary
Committee. The completed questionnaire was to be mailed, along with
supporting docxamentation, to each committee member. Due date for
the completed questionnaire was March 26, 1993. Thereafter, I was
notified by the Chairman of the Advisory Committee that I had been
selected for interview and was scheduled to be interviewed in Tulsa,
Oklahoma, on April 10, 1993. I appeared before the Advisory
Committee as scheduled and was questioned at some length by each
member of the Committee. I was later contacted by Senator David
Boren and interviewed extensively by telephone. On April 20, 1993,
I was again contacted by Senator Boren and advised that I would be
recommended to the President for nomination to the U.S. District
Court for the Northern District of Oklahoma.
I was contacted by letter from the White House Counsel's Office
dated September 17, 1993, and requested to complete several forms.
Following the return of these forms, I was called and interviewed at
some length by an attorney with the Office of Policy Development,
Department of Justice. At his request, I furnished the names and
27
824
phone nxnnbers of five or six judges I had appeared before, I
understand from local judges and lawyers that a number of them were
contacted and questioned concerning ny qualifications and
temperament .
Two agents from the Federal Bureau of Investigation contacted
me in early December of 1993 to begin their investigation. I was
interviewed extensively concerning the information provided in a
personal data questionnaire. Subsequently, the agents interviewed
my staff, my neighbors and a significant nvimber of townspeople. The
agents also called me on two occasions to ask follow-up questions or
clarify information.
Also I have attended personal interviews with the Department of
Justice and the American Bar Association. The Department of Justice
interview took place in Washington D.C. on December 13, 1993, with
several members of the Office of Policy Development. The 10th
Circuit representative of the American Bar Association's Standing
Committee on Federal Judiciary met with me in Dallas, Texas on
January 27, 1994.
I was advised by the White House Counsel's Office of my
nomination by President Clinton on March 9, 1994.
4. Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
interpreted as asking how you would rule on such case, issue,
or question? If so, please explain fully.
No.
28
825
5. Please discuss your views on the following criticism involving
"judicial activisn."
The nature of my law practice as a trial attorney the past
twenty-three years has been primarily that of grievance-resolution.
I have confidence in that process, have experienced success with it,
and will bring that approach to bear on any cases that are brought
before me.
I regard the U.S. District Judge in the traditional sense --
one who is by oath obliged to apply the law in accordance with
Supreme Court and Circuit precedent. Our Constitution clearly
dictates the separation of powers between branches, investing
legislative powers in a Congress elected by the people. It is my
belief that changes in social policy are best effected through the
consensus-building mechanisms that are exclusively committed to the
executive and legislative branches.
I interpret judicial restraint as, quite simply, the
acknowledgement that our government is founded on basic rights and
freedoms established by our Constitution as interpreted by the
Supreme Court. In upholding these precedents, I do not see an
abdication of responsibility, but rather a very deep respect for the
proven traditions of a government which protects the rights of the
individual through a body of law that has evolved thoughtfully over
time .
29
826
FINANCIAL DISCLOSURE REPORT S.?S25'2r!2r-
(S U.I.CA. «tv. «. M101-I12)
1. Mraco ■ninrrUii (iMt hk, tixmt, mUtlm tmltlal)
KERN, TERRY C.
1. oowt oc ni9«nln»1n«
Northern District of Oklahona
1. BMaoC BaroR
Mar. 10, 1994
Article III Nominee
X ^-»i«. B«. 3/9/94
laltlal l—il riMl
•. aapnrrlng Mdod
Jan. 1, 1993 -
Mar. 1, 1994
Suite 330, Meustadt Plaza
333 West Main
Ardnore, OK 73401
t. OB tto DmU of tka laCaiKtlaa mnt«l— 1 la this Ba*aR, It
U, la IV oplalao, U on^Haana vlth an>"nahl« 1mm aad
ragalatlaaa
mlavlnf Offlcu llfBaum
IMFORXANT NCrraS: 2*e instmauita aecompanying this farm mua be foa<nvtd. Complete dl parts,
AecUat the NONE box for each «ec<ioa nhcre you have no rcpoctable iofonaatloa. Siffi on last page.
I. POSITIONS. (Repoiting individiul only; see pp. 7-8 of Instructions.)
POSITION NAME OF ORGANEATION/ENnTY
I I NONE (lo raponabla poalUooa)
Trustee
Tinstee
Director
MBBoricd Hospital of Southern OklahoTB. Irx:.
Ardtnore Development Authority
Legzd Institute of Pickens Oounty I.T.
II. AGREEMENTS. (Reporting individual only, see p. »-9 of Instnictions.)
DATE PARTIES AND TERMS
I I NONE (ao raportabla agmainta)
Petxlinq Stock buyout by remaining maitoers of law firm (Mr. Mordv. Mr. Sperrv
and Mr. Daniels) ; $250,000 payable over 5 years. Mr. Kern will eilso
receive his share of cztsh on hand, accounts reoeivcible and work-in-
process as collected.
NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 9-12 of Instniclioos.)
n
DATE
(Honoraria only)
SOURCE AND TYPE
NONE (Ro raportabla Bon-lafaaTaal
1992 Kern and Associates P.C. - salary
jaSLL.
Kom, Mnrriy anri gporry P r - ga1ai-y
GROSS INCOME
(youis, not spouse's)
$240.612.52
$267.251.50
$
$
$
827
FINANCIAL DISOXJSURE REPORT (cont'd)
Uamm of P«c«aa Maportlng
Kern, Terry C.
Data of Bavort
Mar. 10, 1994
IV. REIMBURSEMENTS and GIF=TS - transportation, Ipdging, food.entertainment
(Indodcs tboM
to fpoase and dependent chOdren; use the parentlicticals *(S)* and '(DC)* to Indicate reportable
'reimbursements and gilts received by spouse and dependent children, respecthely. See p|k,13-I5 or Insnuctiaaa.)
n
SOURCE
NONE (lo aach rapurtaUo
Ejtenpt
DESCRIPTION
' «l(ta)
V. OTHER GIFTS, (includes those to spouse and dependent children; nse the parentbeticals *($)■ and *(DC)*
indicate other gills receivtd by spouse and dependent children, respectively. See pp.l5-l< of Instmcti
to
InstmoOoaa.)
n
SOURCE
NONE (SO aaek raportabla gltxm)
DESCRIPTION
VALUE
Btaipt
VI. LIABILITIES. (Indudes those or
for liabiUty by nsins the parenthetical '(S)' fn
Individual and spoue, and '(DC)' for UabUlty
cpgnrmw
r spouse and dependent children; Indicate where applicable, penon
etical '(S)' ror sepante liability oT spouse, '(J)' ror Joint UabUity ol
' for liability or a dependent dhild. ^cc pp.l<-18 oTInstnictions.)
I dependent Aild. ^cc pp.1
DESCRIPTION
responsible
reporting
VALUE CODE*
D
NONE (ao
llabllttloa)
Ejcdiaiwe Nat'l Bank and Trust (S) Mortiqaqe 100 E St., Aranore, OK
Citizens Bank of Ardmore (S)
Mortgage 3rd t B St., Anghore, OK
•.WJUB OCOUI J - SIS/OOO OT laaa K • «19,M1 to SM.OM X » t30,D01 to (100,000 M • 1100,001 to «JSO,000
I • SlJO.OOl to SMO.OOO O • SJ00,001 to 41,000,000 I ' MOT* chas Sl.OOO.OOO
828
FINANCIAL DISCLOSURE REPORT (confd)
Vaaa of p«r«oo Maportlog
Kern, Terry C.
0«t« of Roport
Mar. 10, 1994
VII. INVESTMENTS and TRUSTS - income, value, transactions.
■nd depaident children; icc pp. 18-27 of Instructions.)
(Includes those of spouse
••p«rBt« owTMrstLlp by «pous«. ^iDC}"
toiodB^cmlLif tri 5«p«j<I«i>t cilia.
" ! HMi» 'txt' »n»r •dch uMi
^■'- , •x«i^>c tcxm prior diacloauro.
B.
lOCOMi
durino
0' -
oroaa vaica
at mad of
. . V. .
STraaaaotlona during raportlsg pariod
(1)
<2)
,Typ»
tl)
Cofla*
<J-P)
t4)
. Valua
Hatnoa,
Coda
Mi..
if not •t«;««pt. ttrm dl»clo«4ir» |
Hooth'
Day
<3)
<J-P)
Gain.
Coda*
bnyar/aaZlar
NONE (Ho r.portii.1.
Ijicaaa, aiBet*. or
tranaactions)
1
Paine Webber IRA
B
div.
L
T
2
Pflinp Webber IRA (S)
A
div.
J
T
3
B
div.
M
T
4
Gruntal and Co., Inc.
A
div.
K
T
i
Chas. Schwab (DC)
A
div.
J
T
t
Invesc» Funds (J)
A
div.
J
T
7
A
div.
J
T
a
Kern, Mordy & Sperry P.C.
D
iiv/int
0
U
9
100 E St. , Ardmore, OK
B
rent
L
R
10
3rd S B St., Ardnore, OK
B
rent
M
Q
11
Oil and gas interests
C
int.
K
W
u
13
14
15
16
IT
11
19
20
I I»oo~/n.1n Codaai i-Jl.oOO or l«aa B-Jl,00l to S2.i00 C^2,501 to 5,000 O-Si.OOl to 515,000
(siTcol. HI « 04) l-Sl^.OOl to S50.000 MiO.OOl to SIOO.OOO O-SIOO 001 to SI. 000. 000 B-Mor. th.n jl.OOO.OOO
; tai.^ coa... ^ — j-lis^oiio 6ri... k-JIs!**! to js6,4m iL.i66,64
(««. Col. CI 4 P3) I1-S250. 001 to $500,000 <^S500. 001 to Jl.OOO.OOO P-Hor.tJ
h«n SI. 000. OOP 1
1 talaa Mxitli CoSiis c-*ppralaal K-Coat (t«al aatata only) S-Aaaaaa
(»« Col. C2) U-Book Vallia v-othar WKatl«
tad
829
FINANCIAL DISOjOSURE REPORT (ooiit*d)
■•■• of »M-«aa Importing
Kern, Terry C,
Itet* of Hapogx
Mar. 10, 1994
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (b^uaiie p.rt .r iup<«t.)
-L President." Item and accnn^ai-og P.r
President, Rem, Mordy t Sperry P.C.
Partner, C.C.M.&K. Building Oo.
Partner, Arhuckle Apartments
VII. (9) Post, May 1, 1980 $309,452
VII. (10) Appraisal, October 28. 1993
IX. CERTIFICATION.
In oomplianoe witb the provisions of 28 U.S.C S 'tis and of Advisory Opinion No. 57 of the Advisory Comminee on
Judicial Activities, and to the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudicatory
function in any litigation during the period covered by this report in which I, my spouse, or my minor or dependent dutdren
had a finanrial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I certify that all information given above (including information pertaining to my spouse and minor or dependent cfaildreo,
if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was
withheld because it met applicable statutory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of S U.S.C.A. app. 7, { 501 et. seq., 5 U.S.C S 7353 and Judicial Conference
regulations.
Signature
Date
W4^./o,/99V
NOTE ANY INDIVIDOAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 UACA. APP. 6, $ 104, AND 18 U.S.C S 1001.)
FILING INSTRUCTIONS:
MaQ
signed original and 3 additional copies to:
Jodidal P.thics Committee
Administrative Office of the
United Slates Courts
Washington, DC 20544
830
RNANOAL STA-reMEhfT
NET WORTH
Provide I compleie. current flnwclil nel worth juwrnem which iterT\iKi In deitU
lU wsru (Inc)uvUng buvk Kcounu. rwl ejut«. je<uritie$. 6rvm. invejcmer^u, and oiher rmanciil
holdingJ) all UabUldcj (bdudlng debu. mongigei. lows, ud other fiflweul cbUg»tjon$) of
yourxl/ your spouse, »nd other Immediate memben of your household.
ASSETS
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33
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60
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15
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165
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79
136
00
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959
150
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1.035
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1,038
286
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CONTINCENT UABIUnZS
CENXRXL INFORMATION
As todorwr, u>mtktt or |ouulor
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831
LISTED SECURITIES
SCHEDULE *1
March 1, 1994
Name of Corporation Current Market Value
Paine Webber, Inc.
( Bonds , Notes , Money
Fund, Equities - TCK & CHK)
Paine Webber, Inc.
(IRA Rollover - TCK)
Paine Webber, Inc.
(Rotan Mosle Division)
(Kern, Mordy and Sperry, P.C.)
Paine Webber, Inc.
(IRA - CHK)
Gruntal & Co., Inc
(Dividends, Interest- TCK)
CGM Mutual Fund
(Reinvestment - TCK & CHK)
Charles Schwab & Co., Inc.
(Money Fund)
(Kern, Mordy and Sperry, P.C.)
Charles Schwab & Co., Inc.
(Money Fund - LK)
Invesco Funds Group, Inc.
(ISP-Gold - TCK £. CHK)
112,871.89
70,426.78
56,961.05
1,006.21
46,114.00
3,284.09
32,375.00
5,011.00
1,215.09
832
REAL ESTATE
SCHEDULE «2
March 1, 1994
Description
Date TCK %
Purchased Value
TCK % Nature of
Mortgages Improvements
Arbuckle Apts.
3rd & "B" N.W. 1985
Ardmore, OK (TCK-50%)
Office Bldg
"E" Street, S.W. 1979
Ardmore, OK (TCK-22%)
$149,000
$ 70,699.05 Investment
$ 68,079 $ 8,436.48 Investment
833
UNITED STATES SENATE QUESTIONNAIRE
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
Gladys Kessler
2 . Address : List current place of residence and office
address (es) .
Home: 2220 20th Street, N.W.
Washington, D.C. 20009
Office: 500 Indiana Avenue, N.W.
Washington, D.C. 20001
3. Date and place of birth.
January 22, 1938; New York, New York
4. Marital Status (include maiden name of wife, or husband's
name) . List spouse's occupation, employer's name and business
address (es) .
Married to Arthur Mackwell who is retired.
5. Education: List each college and law school you have
attended, including dates of attendance, degrees received, and
dates degrees were granted.
Cornell University 1955-1959 B.A., February, 1959
Harvard Law School 1959-1962 L.L.B., June, 1962
6. Employment Record: List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or
employee since graduation from college.
2/1959 - 8/1959 Prof. Clinton Rossiter
Dept . of Government
Cornell University
Research Assistant and Secretary
1962 - 1964 National Labor Relations Board
Appellate Attorney
1964 - 1966 Senator Harrison A. Williams
Legislative Assistant
834
1966 - 1968 Congressman Jonathan B. Bingham
Legislative Assistant
1968 - 1969 New York City Board of Education
Special Assistant to the Director of
the Office of Staff Relations
1969 - 1977 Berlin, Roisman and Kessler which
became Roisman, Kessler and Cashdan
Partner
1977 - present D.C. Superior Court
Associate Judge
7. Military Service: Have you had any military service? If so,
give particulars, including the dates, branch of service, rank
or rate, serial number and type of discharge received.
No
8. Honors and Awards : List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
I had small scholarships at both Cornell and Harvard.
Women's Bar Association Woman Lawyer of the Year, 1983
9. Bar Associations: List all bar associations, legal or
judicial -related committees or conferences of which you are or
have been a member and give the titles and dates of any
offices which you have held in such groups.
American Judicature Society Board of Directors,
1985-1989
National Center for State Courts, Board of Directors,
1984-1987
President, National Association of Women Judges, 1982-
1983
Vice President, National Association of Women Judges,
1979-1981
President, Women Judges' Fund for Justice, 1986-1987
President, Foundation for Women Judges, 1980-1982
Women Judges' Fund for Justice, Board of Directors
1980-1952
835
District of Columbia Courts' Joint Committee on Judicial
Administration, 1989-present
Council Harvard Law School Association, 1986-1989
District of Columbia Bar
Fellows of the American Bar Foundation
American Bar Association
American Law Institute
Women's Legal Defense Fund
National Council of Juvenile and Family Court Judges
Now Legal Defense and Education Fund, Inc.
International Association of Women Judges
ABA Standing Committee on Alternative Dispute
Resolution, 1987 - 1990; Subcommittee on Multi-Door
Courthouse (grant funded by State Justice
Institute)
D.C. Superior Court Delegate to Judicial Administration
Division, 1985-1990
Chair, ABA Judicial Administration Division, Committee on
Bioethics and AIDS, 1993 - 1994
ABA Advisory Commission on Youth, Alcohol and Drug
Problems
ABA National Advisory Board on Child Support
ABA Judicial Administration Division; Criminal
Justice Section; Individual Rights and
Responsibilities Section
ABA Section on Dispute Resolution - Committee on
Committees
I have been a member of the planning committee of
numerous judicial conferences in my own jurisdiction. I have
chaired, organ-zed or participated in the following
activities:
836
A. ADR Field
Chairperson, Family Dispute Resolution Conference,
March, 1990, Miami, Florida, sponsored by ABA
Standing Committee on Dispute Resolution
Advisory Board, Project to Develop Standards
for Court -Based Mediation, Center for Dispute
Settlement - Inst itute for Judicial
Administration (funded by State Justice
Institute) , 1990-92
Member, BNA Advisory Board, Alternative Dispute
Resolution Report, 1967-1990
Numerous presentations to different state and local
bar groups on ADR in general and the creation and
development of the Multi-Door Courthouse in
particular
B. Family Law Field
District of Columbia Court Child Support Guidelines
Committee, 1985-1989
District of Columbia Advisory Commission on Child
Support, 1984-1987
Advisory Committee, National Judicial Education Project
on Domestic Violence: "The Crucial Role of the Judge in
the Criminal Court" (funded by State Justice Institute),
1990-1991
Advisory Committee, National Judicial Education Project
on Domestic Violence: "Domestic Violence in Civil Court
Cases" (funded by State Justice Institute) , 1991-1992
Speaker, June, 1991, Washington, D.C., National
Women's Health Resource Center Conference on
Violence Against Women
Advisory Committee to Women Judges' Fund for
Justice' Project on Enhancing Gender Fairness in the
State Courts, and Chairperson of Child Custody
Panel (funded by State Justice Institute) , 1990-
1991
Member, Georgetown University Family Law
Curriculum Planning Committee
837
Lead Judge, Permanency Planning Project,
National Council of Juvenile and Family Court
Judges, 1983 to 1987
Advisory Panel, March 1990, U.S. Department of
Justice Publication, "Civil Protection Orders:
Legislation, Current Court Practice, and
Enforcement"
Speaker, May 1986, District of Columbia Circuit Federal
Judicial Conference, Panel on Juvenile Justice Issues
Moderator and Organizer, 1990 National Conference
on the Future and the Courts, sponsored by American
Judicature Society (funded by State Justice
Institute) , "Future of the Family Court"
C. Bioethics Field
Keynote Speaker, April, 1992, Conference on
Physician Assisted Dying, sponsored by
American Society of Law and Medicine
Chairperson, Advisory and Review Committee,
Science Curriculum for State Court Judges
Presiding in Toxic Exposure Cases, conducted
by Georgetown University, 1991-1992 (funded by
State Justice Institute)
Chairperson, National Conference on Bioethics,
Family and the Law, September 21-23, 1991,
Washington, D.C.
Chairperson, National Conference of the State
Judiciary on Bioethical Issues, September 7-
10, 1989, National Judicial College
Moderator and Organizer, June 1991, District
of Columbia Judicial Conference, "Decisions
and Life and Health: Medical, Ethical and
Legal Issues"
Moderator and Organizer, June 1990, District
of Columbia Judicial Conference, " Parental -
Fetal Rights"
Speaker, September, 1990, Cruzan Conference,
sponsored by American Society of Law and
Medicine, "Medical Decision-Making and the
Right to Die After Cruzan: Competency Issues"
838
Speaker, 1990, National Conference on the
Future and the Courts, sponsored by American
Judicature Society (funded by State Justice
Institute) , "Bioethics"
Chairperson, Judicial Training Conference on
Women, Families and Reproductive Health, April
9-11, 1991, Washington, D.C.
Chair, Training Conference on Impact of
Reproductive Technology on Law, October 20-22,
1989, Washington, D.C.
Moderator and Organizer, June, 1989, District
of Columbia Circuit Federal Judicial
Conference, "Court Issues Raised by Advances
in Reproductive Technologies"
Chairperson, Judicial Training Conference on
Reproductive Technologies, November, 1988,
Airlie House, Virginia
Moderator and Organizer, 1987 D.C. Superior
Court Judicial Training Conference, Panel on
Bioethics
D. Current Projects
Chairperson, National Advisory Committee for project on
"Toxic Torts and State Courts: Judicial Deskbook and
Science Curriculum for State Court Judges Presiding in
Toxic Exposure Cases" (funded by State Justice
Institute) , 1991-present
Chairperson, Advisory Committee for ABA Commission on
Legal Problems of the Elderly project on "Elder Abuse and
State Courts: Guidelines for the Courts in Handling
Elder Abuse Cases" (funded by State Justice Institute),
1993-present
Chairperson, Advisory and Review Committee project on
"Tools to Describe Science Underpinnings of Mass Tort
Litigation" (funded by State Justice Institute), 1993-
present
10. Other Membership: List all organizations to which you belong
that are active in lobbying before public bodies. Please list
all other organizations to which you belong.
While I periodically make contributions to certain
organizations which lobby before public bodies, I have repeatedly
6
839
instructed them that I did not intend to be a member or receive any
of the benefits of membership.
I am not sure if you mean to cover arts-related organizations,
but I am a member of the Washington Performing Arts Society, the
Smithsonian Resident Associates Program, and the Kennedy Center
Stars.
11. Court Admission: List all courts in which you have been
admitted to practice, with dates of admission and lapses if
any such memberships lapsed. Please explain the reason for
any lapse of membership. Give the same information for
administrative bodies which require special admission to
practice .
New York State 8/26/1968
U.S. Supreme Court 1/29/1968
U.S. District Court
for the District of Columbia 6/19/1969
U.S. Court of Appeals
for the District of Columbia Circuit 6/17/1970
U.S. Court of Appeals
for the Fourth Circuit 8/13/1973
\ I suspect, but do not really know, that my New York State bar
membership has lapsed after all these years of being out of that
jurisdiction.
12. Published Writings: List the titles, publishers, and dates
i of books, articles, reports, or other published material you
have written or edited. Please supply one copy of all
published material not readily available to the Committee.
Also, please supply a copy of all speeches by you on issues
involving constitutional law or legal policy. If there were
press reports about the speech, and they are readily available
to you, please supply them.
840
1990-1992 Judicial Associate Editor, Courts.
Health Science and Law Journal. Georgetown
University Medical and Law Centers - I never
wrote any material for this publication, and
it has gone out of existence
1989, Co-authored chapter "Integration of
Women and Minority Judges into the American
Judiciary, " The Judge ' s Book published by ABA
National Conference of State Trial Judges -
Attachment 12A
December, 1984, "Crisis in Child Support,"
Trial Magazine - Attachment 12B
February, 1984, Forward in S^inposium Issue,
Golden Gate Law Review on National Association
of Women Judges - Attachment 12C
Fall, 1983, "Affirmative Action Can Mean the
Best Person for the Job, " Judges' Journal -
Attachment 12D
Summer, 1976, Litigation Magazine. "The
Economics of Public Interest Litigation" - I
have not been able to locate this article
May, 1970, George Washington University Law
Review, "Public Interest Law," co-authored
with Edward Berlin and Anthony Z. Roisman -
Attachment 12E
I do not maintain a file of speeches.
13. Health: What is the present state of your health? List the
date of your last physical examination.
Excellent. Last complete physical was December, 1992,
although I have had examinations for minor ailments since
then.
14. Judicial Office: State (chronologically) any judicial
offices you have held, whether such position was elected or
appointed, and a description of the jurisdiction of each such
court .
Associate Tudge, D.C. Superior Court. Appointed by
President Jimmy Carter in 1977; re-appointed by President
8
841
George Bush in 1992. Superior Court is a trial court of
general jurisdiction and handles all criminal, civil, tax,
probate, domestic relations, delinquency, and neglect and
abuse cases in the District of Columbia.
Citations: If you are or have been a judge, provide:
(1) citations for the ten most significant opinions you have
written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or where
your judgment was affirmed with significant criticism of your
substantive or procedural rulings; and (3) citations for
significant opinions on federal or state constitutional
issues, together with the citation to appellate court rulings
on such opinions. If any of the opinions listed were not
officially reported, please provide copies of the opinions.
(1) I have attached six opinions which have not been
published in any official reporter. In addition, I am listing
the following citations to five opinions which are published
and easily obtainable:
1. Fortt V. Plymouth Congregational Church, 119 Daily
Wash. L. Rpter. 2053 (D.C. Super. Ct . July 25, 1991).
2. McKethean v. WMATA. 115 Daily Wash. L. Rptr. 61
(D.C. Super. Ct . December 3, 1986).
3. In re D. I . . R.I. . D.I . . 113 Daily Wash. L. Rptr.
1293 (D.C. Super. Ct . May 6, 1985).
4. In re Brooks, 112 Daily Wash. L. Rptr. 353 (D.C.
Super. Ct. January 10, 1984).
5. McCree v. McCree. 109 Daily Wash. L. Rptr. 2145
(D.C. Super. Ct . September 28, 1981).
(2) I am also listing those appellate opinions in which
I was reversed. I have included in such listing the appellate
citation and a short summary highlighting the central issue on
9
842
appeal. I am not aware of any decisions where my judgment was
affirmed with significant criticism of any of my substantive
or procedural rulings.
1. Carr v. Nat'l Delicatessen. 397 A. 2d 914 (D.C. 1979)
- landlord and tenant case.
The Court of Appeals reversed the trial court's dismissal
of suit for possession of premises, finding that the landlord
had given adequate notice to the tenant to vacate the
premises .
2. In re Boyd. 403 A. 2d 744 (D.C. 1979) - mental health
case.
Announcing for the first time that a substituted judgment
test would be applied in mental health proceedings, the case
was remanded for reconsideration of trial court's order
authorizing the hospital's administration of psychotropic
drugs, in light of the new standard.
3. D.C. V. M.E.K. . 407 A. 2d 655 (D.C. 1979) - juvenile
delinquency case.
The Court of Appeals reversed the trial court's granting
of pre-trial motion to suppress evidence, finding that the
government had established probable cause to arrest, based on
a report of illegal activity personally witnessed by a
reliable informant.
4. Global Van Lines v. Kleinow. 411 A. 2d 62 (D.C. 1980)
- civil case.
The Court of Appeals reversed the trial court's judgment
10
843
for plaintiff in a defamation suit, ruling that a judgment
creditor could not be held liable in a defamation suit based
upon the issuance of a writ of attachment by the Superior
Court .
5. U.S. V. Stancil. 422 A. 2d 1285 (D.C. 1980) -
criminal case.
The Court of Appeals reversed the trial court's dismissal
of the charge based on its conclusion that a moped is included
under the category of motorcycle in the Unauthorized Use of a
Vehicle statute.
6 . AMAF International Corporation v. Ralston Purina
Co. . 428 A. 2d 849 (D.C. 1981) - commercial case.
The Court of Appeals reversed the trial court's dismissal
based on lack of personal jurisdiction, ruling that the
statute authorizing service of process on resident agent of
foreign corporation established jurisdiction when that foreign
corporation did on-going business in the District.
7. In the Matter of An Incmirv into Allegations of
Misconduct Against Juveniles Detained At and Committed at
Cedar Knoll Institution. 430 A. 2d 1087 {D.C. 1981) - juvenile
delinquency case.
The Court of Appeals reversed trial court's order
mandating changes in the internal operation of juvenile
facility for lack of jurisdiction despite acquiescence of D.C.
government to jurisdiction at trial court level.
11
844
8. Musqrove v. U.S. . 441 A. 2d 980 (D.C. 1982)
criminal case.
The Court of Appeals reversed a conviction of assault
because of prejudicial admission of a citizen complaint form
which had not been signed by complaining witness.
9. Arnold v. U.S. . 443 A. 2d 1318 (D.C. 1982) - criminal
case - remanded for resentencing only.
10. D.C. V. Woody. 452 A. 2d 324 (D.C. 1982) - civil
case.
The Court of Appeals reversed the trial court's granting
of plaintiff's motion for summary judgment, finding that the
plaintiff was not entitled to consequential damages in absence
of proof that the due process deprivation proximately caused
an erroneous administrative decision on the merits. The case
was remanded to the trial court for further remand to the
Police Department for a hearing.
11. Washington v. U.S.. 461 A. 2d 1037 (D.C. 1983) -
criminal case.
The Court of Appeals reversed the trial court's in limine
decision to preclude cross-examination of the government's
witness regarding his possible bias toward the defendant,
finding that the decision erased the essential evidence
regarding the credibility of the witness.
12. Padgett v. Padaett. 472 A. 2d 849 (D.C. 1984) aff'd,
vacated and rema.nded - domestic relations case.
The Court of Appeals affirmed the trial court's
12
845
determination that laches doctrine is applicable as a bar to
plaintiff's claim, but remanded to give the trial court an
opportunity to reconsider the laches claim in light of the
defendant's present financial situation.
13. Cooper v. Cooper. 472 A. 2d 878 (D.C. 1984)
domestic relations case.
The Court of Appeals reversed the trial court's increase
of alimony and child support payments, finding that the trial
court applied the standard used in modifying court ordered
payments, instead of the standard used in modifying payments
set by agreement of the parties.
14. In Re Hanna . 484 A. 2d 537 (D.C. 1984) - mental
retardation case.
The Court of Appeals reversed the trial court's order to
discharge a patient committed for mental illness and to
recommit him under the Retarded Citizen's Act. The appellate
court found that the trial court's authority was limited to
determining whether the hospital ' s decision regarding the
patient's mental illness was based solely on statutory grounds
and not motivated by concerns incompatible with the Ervin Act.
The case was remanded to determine whether the hospital had
decided that the patient was no longer mentally ill.
15. DeMontmorin v. DuPont. 484 A. 2d 582 (D.C. 1984) -
civil case.
The Court of Appeals reversed the trial court's granting
of the defendant's motion to dismiss on the grounds of foy^m
H
846
non conveniens, finding that the public interest favored
consideration in the District of Columbia courts of the merits
of this case against a District resident to enforce child
support payments due under a District of Columbia separation
agreement .
16. Zapata v. Zapata. 499 A. 2d 905 (D.C. 1985) - civil
contempt case.
The Court of Appeals affirmed in part and reversed in
part the trial court's order which found both the plaintiff
and the defendant in contempt of a court order enjoining them
from interfering with the quiet enjoyment of each other's
property. The appellate court found that there was
substantial evidence supporting the contempt charge against
the husband, but found that there was no evidence supporting
the contempt charge against the wife which was accordingly
reversed and remanded for reconsideration of the wife's motion
for attorney fees.
17. Cobb V. Cobb. 500 A. 2d 1016 (D.C. 1985) - domestic
relation case.
The Court of Appeals remanded for findings on whether the
veteran's widows' benefits constituted a property interest,
and if so, whether the plaintiff would have a colorable claim
of entitlement to that property, in order to establish trial
court jurisdiction. If "the findings were negative, the trial
court's previous dismissal of the plaintiff's complaint would
stand.
11
847
18. In Re J.C. M. , 502 A. 2d 472 (D.C. 1985) - juvenile
delinquency case.
The Court of Appeals reversed the trial court's
conviction of the defendant for burglary and theft, ruling
that fingerprint analysis alone did not constitute sufficient
evidence to establish proof beyond a reasonable doubt.
19. Portlock v. Portlock. 518 A. 2d 116 (D.C. 1986) -
domestic relations case.
The Court of Appeals reversed the trial court's denial of
a wife's motion to increase child support payments, announcing
for the first time that when the moving party shows that the
agreement between parties regarding child support was
initially inadequate to meet the child's foreseeable needs,
the trial court has the authority to consider motion for
modification.
20. D.C. v. Daniels. 523 A. 2d 569 (D.C. 1987)
administrative law case.
The Court of Appeals vacated the trial court's remand to
the Metropolitan Police Department (MPD) , and remanded for a
decision on the merits to the Office of Employee Appeals
(OEA) , since the MPD failed to inform the plaintiffs of their
rights to an OEA review.
21. Fotos V. Fireman's Insurance Co.. 533 A. 2d 1264
(D.C. 1987) - bailment case.
The Court of Appeals reversed the trial court's judgment
for bailor's insurer in which it found that the omission on a
15
848
warehouse receipt regarding the storage place of a coat caused
the bailee's liability for the theft of that coat. Instead,
the appellate court found that the bailee's liability may be
grounded in the law of conversion.
22. Norfleet v. Rosen. 539 A. 2d 1089 (D.C. 1988) - civil
case.
Trial court's granting of motion for summary judgment was
reversed on ground that the plaintiff raised genuine and
material issues of fact.
23. D.C. General Hospital v. D.C. Office of Employee
Appeals. 548 A. 2d 70 (D.C. 1988) - administrative law case.
The Court of Appeals reversed the trial court's
affirmance of an Office of Employee Appeals (OEA) decision,
finding that the OEA's decision was not supported by
substantive evidence.
24. PERB v. Washington Teachers' Union Local 6. AFT. 556
A. 2d 206 (D.C. 1989) - administrative law case.
The Court of Appeals set aside the judgment of the trial
court and affirmed the Public Employee Relations Board's
determination that Board of Education calendar decisions are
not mandatory subjects of collective bargaining. The Court of
Appeals ruled that the issue should not have been reviewed de
novo by the trial court and that deference should have been
given to PERB decision, unless it was found to be clearly
erroneous .
16
849
25. Weiner v. Kneller, 557 A. 2d 1306 (D.C. 1989) -
medical malpractice case.
The Court of Appeals reversed the trial court's exclusion
of certain expert testimony as a sanction against the
plaintiff for her failure to indicate the content of that
testimony in pretrial discovery, finding that the testimony
did not surprise or prejudice defendants and further, that the
testimony was important to the plaintiff's case and was
inadvertently omitted from pretrial discovery.
26. Thompson v. Thompson, 559 A. 2 311 (D.C. 1989) -
domestic violence case.
The Court of Appeals reversed the trial court's denial of
continuance in criminal contempt proceeding (for violation of
a stay-away order) which had been based on the seriousness of
the allegations, the age of the case, and the defendant's
failure to secure counsel prior to hearing.
27. D.C. Metropolitan Police Dept . v. Broadus. 560 A. 2d
501 (D.C. 1989) - administrative law case.
The Court of Appeals reversed the trial court's
affirmance of an Office of Employee Appeals decision that a
criminal indictment for offenses committed by an off-duty
police officer, with his service revolver, constituted cause
for suspension without pay.
28. Washington Post v. Minor. Bus. 0pp. Comm. , 560 A. 2d
517 (D.C. 1989) - civil FOIA case.
The Court of Appeals remanded for trial court (1) to make
17
850
an in camera inquiry as to whether any part of parts of
materials requested under the Freedom of Information Act could
be segregated from other parts exempted; and (2) to make a de
novo written review of the agency's exemption claims under
FOIA.
29. Klinq v. Peters. 564 A. 2d 708 (D.C. 1989) - medical
malpractice case.
The Court of Appeals ruled that directed verdict should
have been granted, and the case should not have been submitted
to the jury because (1) there was insufficient evidence to
prove that defendant breached standard of care with respect to
his failure to use certain medical instruments and (2) there
was insufficient evidence to establish proximate cause of the
plaintiff's injury.
30. Couqhlin v. George Wash. Univ. Health Plan. 565 A. 2d
67 (D.C. 1989) - medical malpractice case.
Trial court's granting of the hospital's motion to
dismiss for failure to state a claim was reversed since the
plaintiff adequately alleged physical impact sufficient to
form the basis of a claim for negligent infliction of
emotional distress. The Court of appeals ruled that whether
the miscarriage in this case resulted in an injury to the
mother, separate from any injury to the fetus, is an issue of
fact, not law, that must be resolved by a jury.
1£
851
31. Holle V. Washington Medical Center. 573 A. 2d 1269
(D.C. 1990) - commercial case.
The Court of Appeals affirmed all of the trial court's
two lengthy opinions, except one minor claim of damages for
unpaid rent . The case was remanded for calculation of such
damages .
32. Brown v. U.S. . 576 A. 2d 731 (D.C. 1990) - criminal
case.
This case was remanded for resentencing only on the basis
of a new ruling by the Court of Appeals that common law rape
and statutory rape are the same for purposes of double
jeopardy and sentencing.
33. Beckman v. Farmer. 579 A. 2d 618 (D.C. 1990) - law
firm dissolution case.
The Court of Appeals reversed the trial court's entry of
summary judgment ruling that the parties had raised genuine
issues of material fact concerning the existence of a law firm
partnership.
34. First American Bank v. D.C. 583 A. 2d 993 (D.C.
1990) - commercial law case.
The Court of Appeals reversed the denial of relief to
plaintiff on the ground that the defendant's impoundment of
plaintiff's vehicle involved a mutual benefit, thereby
creating a quasi -bailment for hire, and providing a basis for
plaintiff's relief. The case was remanded for new findings of
fact .
19
852
35. Jones v. Howard Universit\-. 589A.2d41S (D.C. 1991)
- medical malpractice case.
The Court of Appeals ruled that trial court correctly
entered summary judgment for defendants based on controlling
law at time of its decision, but Court of Appeals reversed
because, subsequent to trial court's ruling, it adopted new
principles of law regarding defendant's alleged negligence.
36. Graham v. Graham. 597 A. 2d 355 (D.C. 1991) -
domestic relations case.
The Court of Appeals reversed the trial court ruling that
a modification of a child support award can not be based only
upon an increase in the non-custodial parent's income. The
appellate court held that modification of child support awards
can be based upon material changes in either the needs of the
children or the non-custodial parent's income.
37. Capitol Hill Hospital v. D.C. 600 A. 2d 793 (D.C.
1991) - civil case.
The Court of Appeals reversed preliminary injunction
issued by trial court to stop the closing of Capitol Hill
Hospital until D.C. Health Planning Agency reviewed such
closing. The Court of Appeals ruled that the case should have
been brought directly to appellate court, rather than trial
court which lacked jurisdiction.
38. Moslev V. Moslev. 601 A. 2d 599 (D.C. 1992) -
domestic relations case.
2J>
853
Although trial court followed current case law and stated
adequate basis for giving husband one-third of marital
property and wife two-thirds of marital property, the case was
remanded for findings on the precise amount of expenses
husband was to repay wife.
39. Gray v. Washington. 612 A. 2d 839 (D.C. 1992) - civil
case .
Imposition of Rule 11 sanctions was reversed, with the
Court of Appeals holding that an attorney may accept oral
factual assertions of his client without making any
independent investigation.
40. Schwartz v. Connors. Piscina. Swartz & Zimmerlv. 623
A. 2d 595 (D.C. 1993) - civil case.
The Court of Appeals reversed that part of the trial
court's order denying the defendant's request for Rule 11
sanctions against the plaintiff for a misstatement of facts.
The Court of Appeals also, in the absence of findings
concerning the applicability of Rule 11, reversed the trial
court's second order which imposed Rule 11 sanctions against
the defendant for filing a motion to reconsider the earlier
order .
41. Roberts-Douglas v. Meares. 624 A. 2d 405 (D.C. 1992)
- civil case.
Where the trial court denied the plaintiff's pretrial
discovery request after finding that requested discovery
documents were in fact relevant to the subject matter of the
21
854
action and were not privileged information, the Court of
Appeals remanded for reconsideration leaving to the trial
court the initial balancing of interests involved, with the
possibility of again denying the discovery request.
42. Early v. Dorchester House Associates. 629 A. 2d 583
(D.C. 1993) - landlord and tenant case.
Case was remanded so that trial court could rule on a
motion for reconsideration which another judge had erroneously
denied. No ruling of mine was reversed.
As a state court judge sitting in a jurisdiction that
does not have a state constitution, I rarely deal with
constitutional issues. Two of the opinions I have attached- -
D. Smith and Fortt- -do. however, deal with Sixth Amendment and
First Amendment issues, respectively.
16. Public Office: State (chronologically) any public offices
you have held, other than judicial offices, including the
terms of service and whether such positions were elected or
appointed. State (chronologically) any unsuccessful
candidacies for elective public office.
None
17. Legal Career:
a. Describe chronologically your law practice and
experience after graduation from law school including:
1. whether you served as clerk to a judge, and if so,
the name' of the judge, the court, and the dates of
the period you were a clerk;
2. whether you practiced alone, and if so, the
addresses and dates;
3. the c.ates, names and addresses of law firms or
offices, companies or governmental agencies with
which you have been connected, and the nature of
your connection with each;
855
(1) I have never served as a law clerk to a judge.
(2) I have never practiced law alone.
(3) When I graduated from law school in 1962, I came to
Washington, D.C. and spent approximately two years
representing the National Relations Board in federal courts of
appeals all over the country as well as in federal district
courts. The Board is located at 1717 Pennsylvania Avenue,
N.W. , Washington, D.C.
Because of my interest in the legislative and political
process, I then went to Capitol Hill where I first worked on
the Senate side for Senator Harrison A. Williams of New Jersey
as his Legislative Assistant for approximately two years from
1964 to 1966, and then on the House side in the same capacity
for Congressman Jonathan B. Bingham for approximately two
years .
After 5 1/2 years in Washington, D.C, I returned to
my former home. New York City, and worked as a labor lawyer
for one year for the New York City Board of Education in its
Office of Staff Relations, located at 110 Livingston Street,
Brooklyn, New York.
Close friends of mine were starting a public interest law
firm and asked me to join them. I did and in 1969 I returned
to Washington, for good, with the firm of Berlin, Roisman, and
Kessler, which later became Roisman, Kessler and Cashdan.
That law firm no longer exists, so there is no address for it.
23
856
In 1977, I became an Associate Judge on the D.C. Superior
Court, and was re-appointed to that position in 1992.
b. 1. What has been the general character of your law
practice, dividing it into periods with dates if
its character has changed over the years?
As I indicated, I started my career as a labor lawyer with the
National Labor Relations Board. I then did extensive legislative
work, of a great variety, for a Senator and Congressman. When I
returned to New York City, I once again practiced labor law- -but in
the specific area of public employment- -with the New York City
Board of Education. Upon returning to Washington, D.C.
permanently, I handled mostly federal litigation including
environmental cases, employment discrimination cases, and FOIA
cases. However, I handled a broad spectrum of litigation ranging
from Superior Court landlord- tenant work to administrative and
regulatory proceedings before state and local agencies.
2. Describe your typical former clients, and mention
the areas, if any, in which you have specialized.
My firm represented many public interest organizations such as
the Sierra Club, Consumer Federation of America, and Environmental
Defense Fund, as well as many individual litigants in Title VII
cases and tenant associations in landlord- tenant litigation. We
also provided in-house counsel and advice to many 501(c)(3)
organizations on their tax status and the proper scope of their
lobbying activities.
21
857
c. 1. Did you appear in court frequently, occasionally, or
not at all? If the frequency of your appearances
in court varied, describe each such variance,
giving dates.
I appeared in both federal and state courts with some
regularity. I never handled any criminal cases.
2. What percentage of these appearances was in:
(a) federal courts;
(b) state courts of record;
(c) other courts.
3. What percentage of your litigation was:
(a) civil;
(b) criminal .
4 . State the number of cases in courts of record you
tried to verdict or judgment (rather than settled) ,
indicating whether you were sole counsel, chief
counsel, or associate counsel.
5. What percentage of these trials was:
( a ) j ury ;
(b) non-jury.
Because I have not been in practice for more than 17
years, I cannot accurately answer questions 17c, 2, 4, and 5.
I would estimate, very roughly, that I argued over 25
appellate cases and wrote well over 50 appellate briefs in my
years at the National Labor Relations Board and my law firm.
Litigation: Describe the ten most significant litigated
matters which you personally handled. Give the citations, if
the cases were reported, and the docket number and date if
unreported. Give a capsule summary of the substance of each
case. Identify the party or parties whom you represented;
describe in detail the nature of your participation in the
litigation and the final disposition of the case. Also state
as to each case :
(a) the date of representation;
25
858
(b) the name of the courc and the name cf the judge cr
judges before whom the case was litigated; and
(c) The individual name, addresses, and telephone
numbers of co- counsel and of principal counsel for
each of the other parties.
It has been more than 17 years since I was in practice
and I cannot accurately and fully answer this question after
all these years. I am listing seven cases which I do remember
well .
1. McLean Gardens Residents' Association v. District
of Columbia Zoning Commission. 390 F. Supp. 165 (D.D.C. 1972).
At the time, McLean Gardens was one of the few very large,
middle- income housing developments located in the heart of the
city. The owners were planning to replace the existing units
with luxury housing and retail shops. Shortly before a Zoning
Commission hearing, at which a decision was to be made on the
developers' request for the zoning changes necessary to
accomplish their plans, I was able to obtain a preliminary
injunction in federal court on behalf of my clients, the
tenants' association, for failure to comply with the National
Environmental Policy Act. The issuance of the preliminary
injunction was upheld on appeal.
The timing of the court action was significant because it
enabled a groundswell of political opposition to develop
resulting in the abandonment of that particular zoning
proposal for intensive high- income development. Although the
District Court ultimately- -after many intervening motions and
2£
859
brief s- -denied a permanent injunction, that denial came at a
time when all involved acknowledged the defects of the
original proposal and the Gardens were no longer in danger of
immediate demolition.
The case was tried before Judge Harrington Parker and the
litigation time frame was October, 1972. I was the only
lawyer handling the case for the plaintiff. Counsel for the
District of Columbia Zoning Commission was Louis P. Robbins,
1666 K Street, N.W., Washington, D.C. 20006 (202-457-7833) and
Nathan Dodell for the National Capital Planning Commission,
United States Attorney's Office, 555 4th Street, N.W.,
Washington, D.C. (202-514-7168).
2. Cohen v. D.C. National Bank. 597 F.R.D. 84 (1972),
382 F.Supp. 270 (1974) (D.D.C.). This was a class action in
which my law firm represented the plaintiff class of borrowers
who had taken out consumer installment loans. We sued a
number of banks in the District for usury and violation of the
Sherman Anti-Trust Act. The District Court ruled, on a motion
for partial summai-y judgment, that the failure to compute
interest on the basis of the declining principal balance
rather than the entire amount originally borrowed violated the
usury laws .
The case was of enormous significance to borrowers
and consumers in the District of Columbia for two reasons.
First, the court ruled that a practice whereby the banks in
the District had charged usurious interest to borrowers for
27
860
more than 60 years was illegal, and that practice was halted.
Second, over 4,000 borrowers received refunds m excess of
$150,000 in illegal interest which they had been charged by
the defendants. The case ultimately settled after we won our
motion for partial summary judgment.
The case was tried before Judge Oliver Gasch. I was
co-counsel on the case with my partner Anthony Z. Roisman,
1401 New York Avenue, N.W. , Washington, D.C. (202-628-3500).
While the core of the case was litigated in 1972, the case
lasted more than six years, and I participated in the writing
of all legal memoranda. I argued the class action
certification motion, and was deeply involved in the complex
strategy decisions that were necessary in the case. Lead
counsel for defendants were Dan Gribbon and Hugh Cox of
Covington & Burling, 1201 Pennsylvania Avenue, N.W. , P.O.
7566, Washington, D.C. 20044 (202-662-6000).
3. Baker v. Reed, which is unreported, was heard in the
District of Columbia District Court (Corcoran, J.), the U.S.
Court of Appeals for the District of Columbia, and the
District Court for the Southern District of Indiana. I was
hired by the NAACP Legal Defense and Education Fund, Inc. to
represent the plaintiff, an indigent prisoner. Plaintiff
sought to challenge the absence of due process in Board of
Parole procedures, in particular the refusal to allow
representation ty a lawyer, the failure to hold a hearing in
each case, and the failure to give reasons for denial of
28
861
parole.
The significance of the case was that it was one of
the early attempts to require the Board of Parole to adhere to
accepted precepts of due process, fairness, and administrative
regialarity in the granting of parole.
Judge Corcoran granted the government's §1404 (a)
motion to transfer the case to the district in which the
prisoner was incarcerated. Despite a §1292 (b) certification
by Judge Corcoran, the Court of Appeals denied the appeal.
After filing of summary judgment motions, the plaintiff was
paroled and the case was ultimately dismissed for mootness.
I was sole counsel on the case and did all briefs
and oral arguments. The approximate trial periods were 1971
and 1972. Representing the government was Nathan Dodell,
United States Attorney's Office, 555 4th Street, N.W.,
Washington, D.C. 20001 (202-514-7168).
4. Small v. Hart. 512 F.2d 918 (CADC 1974). The
Court of Appeals appointed me to handle this case which, with
a similar companion case, provided a vehicle for the Court to
re-examine the whole transfer policy governing lawsuits by
indigent and pro se prisoners (and under which Baker v. Reed.
supra, had been transferred to Indiana) .
This case had great significance for this Circuit's
workload because hundreds of such cases were being filed here
annually. The government was most anxious to obtain automatic
transfer of such cases, because many prisoners at that time
29
862
perceived this circuit to be a more sympathetic one. The
Court essentially adopted plaintiff's position by fashioning
a rule for a showing by all parties as to the most convenient
forum, with a hearing if necessary, at the District Court
level rather than automatic transfer to the district in which
the prisoner was incarcerated.
I was sole counsel on the case and briefed the issues
fully. I then presented oral argument which the Court ordered
en banc . Representing the government was Nathan Dodell,
United States Attorney's Office, 555 4th Street, N.W.,
Washington, D.C. 20001 (202-514-7168) . The case was litigated
in 1973-1974.
5. Cape Henrv Bird Club v. Laird. 359 F. Supp. 404
(D.C.W.Va. 1973); 484 F.2d 453 (CA 4, 1973). I represented
the National Wildlife Federation in an effort to enjoin the
building of a massive and controversial dam on the Jackson
River in Southeastern Virginia for violating the National
Environmental Policy Act, the Federal Water Pollution Control
Act Amendments of 1972, and the Fish and Wildlife Coordination
Act of 1958.
The significance of the case was that an all-out effort
was made to challenge many of the technical assumptions on
which the Corps of Engineers based its flood-control projects.
It was lost at both the trial and appellate levels.
I handled all trial and appellate work, although I
did have the help of a staff lawyer at National Wildlife
863
Federation named Oliver Houck. Despite coming into the case
only a month before trial, we presented all the technical and
academic experts and carried the bulk of cross-examination in
a trial of three weeks' duration. The approximate trial
period was March, 1973. Representing the government was Paul
R. Thompson, an Assistant U.S. Attorney then working in
Roanoke, Virginia.
6. Smeal v. National Organization for Women, Superior
Court of the District of Columbia (Stewart, J.), which is
unreported. I represented the Board of Directors of the
National Organization of Women which was being sued by a
dissident faction for a temporary restraining order and
permanent injunction against an upcoming election, on the
ground that the Board had failed to comply with the District
of Columbia Non-Prof it Corporation Act. The request for a
temporary restraining order was denied, but the preliminary
injunction was granted.
The significance of the case was that while the
litigation presented a very narrow and technical question of
corporation law, the outcome ultimately contributed to the
ouster of the incumbent majority and the election of a new
board with a very different political outlook and orientation.
I was sole counsel and, on extraordinarily short notice,
handled all aspects of the case including hearings, briefing,
legal research, preparation of witnesses, etc. My opposing
counsel was Warren Kaplan, Washington Lawyers Committee For
31
864
Civil Rights, 1400 I Street, N.W., Suite 450, Washington, D.C.
20006 (202-682-5900) . The trial periods were May or June,
1974.
7. Conservation Foundation v. Reed. United States
District Court for the District of Columbia, (Gasch, J.),
which is unreported. I represented the Plaintiff in a Freedom
of Information Act suit to obtain factual information
contained in a confidential report to the Department of
Justice. My client considered the information essential for
completion of a report it was preparing for the Department of
Interior.
The case presented some significant issues as to the
scope of the fifth exemption to the Freedom of Information Act
when factual and policy matters are interwoven in a report.
Plaintiff ultimately won. I was sole counsel, and
prepared the Complaint, motion for preliminary injunction,
supporting memoranda and affidavits, and presented the oral
argument. So far as I know, there was no published opinion.
I am sorry that I simply cannot remember who the Assistant
U.S. Attorney was who represented the government.
(d) The Justice Department has asked me to provide you
with the names of ten lawyers who have practiced
extensively in front of me. They are:
1. David Schertler, Esquire
U.S. Attorney's Office
555 4th Street, NW
Washington, DC 20001
(202) 514-7425
21
865
2. Kathleen Ccrken, Esquire
U.S. Attorney's Office
555 4th Street, NW
Washington, DC 20001
(202) 514-7640
3. Shawn Moore, Esquire
204 G Street, NE
Washington, DC 20002
(202) 544-1580
4. Jonathan Stern, Esquire
Public Defender Service
451 Indiana Avenue, NW
Washington, DC 20001
(202) 628-1200
5. Ken Mundy, Esquire
Suite 1004
1155 15th Street, NW
Washington, DC 20005
(202) 223-4470
6. Nancy Preiss, Esquire
WILLIAMS & CONNOLLY
725 12th Street, NW
Washington, DC 20005
(202) 434-5000
7. Diane Brenneman, Esquire
6 01 Pennsylvania Avenue, NW
Washington, DC
(202) 393-2121
8. Steven Hamilton, Esquire
MONTEDONICO, HAMILTON & ALTMAN
Chevy Chase Plaza, Suite 400
5301 Wisconsin Avenue, NW
Washington, DC 20015
(202) 364-1434
9. William Seals, Esquire
917 6th Street, NW
Washington, DC 20001
(202) 833-4664
10. Leslie Scherr, Esquire
SCHWEITZER, BENTZEN & SCHERR
1225 Lye Street, NW - Suite 900
Washington, DC 20005
(202) 371-8900
33
866
19. Legal Activities; Describe the most significant legal
activities you have pursued, including significant litigation
which did not progress to trial or legal matters that did not
involve litigation. Describe the nature cf your participation
in this question, please omit any inforrr.ation protected by the
attorney-client privilege (unless the privilege has been
waived. )
I have been very active in several important areas cf the
law.
First, I was in charge of developing, and starting, and
supervising our Multi-Door Dispute Resolution Program. This
was one of the first comprehensive alternative dispute
resolution programs in the country. It has been enormously
successful and has been a model for many other jurisdictions.
I have spoken at many judicial conferences and meetings about
ADR, have been active in ABA committees dealing with ADR, and
have done judicial training on the subject under State Justice
Institute grants.
Second, I played a major role in developing and obtaining
approval and implementation of child support guidelines for
the District of Columbia. This project took, literally, years
and hundreds of hours. However, I firmly believe that--in
terms of improving the lives of children--the creation of
these Guidelines, which provide clear, uniform and fair
amounts of child support, may be the most significant
contribution I have made to our community.
Third, I have pursued an interest in providing judicial
education on hioethics issues to judges. This is a
fascinating, terribly difficult, and newly emerging area of
11
867
the law. I have organized at least a half-dozen conferences
and seminars on the subject and have found my colleagues
around the country as challenged by the subject matter as I
have been .
35
868
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1. List sources, amounts and daces of all anticipated receipts
from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive
from previous business relationships, professional services,
firm memberships, former employers, clients, or customers.
Please describe the arrangements you have made to be
compensated in the future for any financial or business
interest .
The only deferred income arrangement is an official
court -sponsored Plan under which we can defer $7500 a year.
Ultimately, I will receive these funds and pay taxes on them
and their earnings.
In addition, I am a member of the D.C. Judges'
Retirement Fund, pursuant to which I am entitled, after the
age of fifty-five, to a reduced annuity, and at age sixty, to
a full annuity based on my years of government service.
2. Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the categories
of litigation and financial arrangements that are likely to
present potential conflicts-of -interest during your initial
service in the position to which you have been nom.inated.
There is a federal statute (28 U.S.C. 455 (d)(4)) which
requires a federal judge to recuse themselves, automatically,
if they own even one share of stock in a company in
litigation. Naturally, I would fully comply with that statute
and recuse myself immediately if a case involving a company in
which I held stock appeared on my docket. My stock holdings
are not so extensive that at any given moment I would not be
able to immediately recognize any companies in which I held
stock. Moreover, in recent years, I have very intentionally
36
869
not been purchasing shares of individual companies, but have
been confining my investments to mutual funds and municipal
securities. I plan to continue that approach to investing.
Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during your
service with the court? If so, explain.
No. The only plans I have would be to occasionally,
after I had become comfortable with my new responsibilities,
return to some of the unpaid teaching I had been doing. In
particular, I greatly enjoyed participating in the trial
advocacy course at Harvard Law School, and would like to do
that again in the future. However, that program only
reimburses judges for actual expenses. Moreover, I would not
anticipate doing that early in my tenure as a federal judge,
because I am well aware of the incredible backlog on my
federal district court.
List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more (if you prefer to do so,
copies of the financial disclosure report, required by the
Ethics in Government Act of 1978, may be siibstituted here.)
My Financial Disclosure Report of March 24, 1994 is
submitted as Attachment II 4.
Please complete the attached financial net worth statement in
detail (Add schedules as called for) .
My financial net worth statement is attached as
Attachment II 5.
37
870
Have you ever held a position or played a role in a political
campaign? If so, please ider.tify the particulars of the
campaign, including the candidate, dates of the campaign, your
title and responsibilities.
I did play a very small role in the reelection campaign
of Senator Harrison A. Williams in 1964. He was running for
reelection to the Senate from New Jersey and was successful.
I remember working in New Jersey for a period of time at
campaign headquarters. While I do not remember the exact time
frame, I am fairly sure that I spent no more than two months
working in the campaign. My duties ranged from doing
research, writing speeches and press releases, to getting
coffee, and cleaning up the office. I do not think that I was
ever given a formal title during the campaign.
Ift
871
III. GENERAL (PUBLIC)
1. . An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some time to participate in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances and
the amount of time devoted to each.
I do make substantial contributions to charitable
organizations each year, including the Public Service
Activities Corporation of the Bar, For Love of Children,
the Children's Defense Fund, and various homeless
shelters .
Much of the work I have done over the years in the areas
of child support, domestic violence, and neglected and abused
children, has been for the benefit of "the disadvantaged" as
Canon 2 of the Code of Professional Responsibility uses that
term. I have also been very active in bar activities, in
judicial education, and in national organizations dealing with
the administration of justice such as the National Center for
State Courts and the American Judicature Society. However, as
a judge, I have been reluctant to undertake any more direct
activities on behalf of "the disadvantaged" out of a concern
that any such activities would be viewed as inappropriate and
in possible conflict with Canons 2, 3, and 4 of the Model Code
of Judicial Conduct.
2. The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a judge
to hold member:. hip in any organization that invidiously
discriminates on the basis of race, sex, or religion. Do you
currently belong, or have you belonged, to any organization
which discriminates- -through either formal membership
39
872
requirements or the practical implemeritation of membership
policies? If so, list, with dates of membership. VJhat have
you done to try to change these policies?
No
Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts? If
so, did it recommend your nomination? Please describe your
experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to
your nomination and interviews in which you participated) .
Yes, there is a selection commission in the District of
Columbia which recommends candidates for nomination to the
federal courts and it recommended my nomination.
Congresswoman Eleanor Holmes Norton appointed a selection
commission. That commission announced that there were four
vacancies (at that time) on my federal bench, and that it was
inviting applications. I filled out and submitted the
questionnaire which the commission used. I was then called
for an interview before the full commission, and that lasted
at least 30, and perhaps 45 minutes. I was also interviewed
by Congresswoman Norton for approximately 30 minutes.
Thereafter I was interviewed at the Department of Justice
for approximately two hours by a group of five or six people.
Representatives of both the Federal Bureau of Investigation
and the ABA Standing Committee on the Judiciary have
interviewed and investigated me.
Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
interpreted as asking how you would rule on such case, issue,
or question? If so, please explain fully.
No.
873
Please discuss your views on the following criticism involving
"judicial activism."
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism that
alleges that the judicial branch has usurped many of the
prerogatives of other branches and levels of government.
Some of the characteristics of this "judicial activism" have
been said to include:
a. A tendency by the judiciary toward problem-solution
rather than grievance-resolution;
b. A tendency by the judiciary to employ the individual
plaintiff as a vehicle for the imposition of far-reaching
orders extending to broad classes of individuals;
c. A tendency by the judiciary to impose broad, affirmative
duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
e. A tendency by the judiciary to impose itself upon other
institutions in the manner of an administrator with
continuing oversight responsibilities.
I am very familiar with these criticisms of "judicial
activism" . I am keenly aware that the first responsibility of
a trial judge is to decide the merits of those specific civil
and criminal cases on his or her docket. Moreover such
decisions must be made on the basis of existing federal
statutes, administrative agency regulations if applicable, and
governing case law from the Supreme Court and the federal
circuit courts. That case law includes concepts of standing,
justiciability, ripeness, abstention, and political questions,
which define the proper role of the federal courts and the
subject matter which they may appropriately consider. It has
41
874
been my observation, over the years, that the federal courts
are particularly unsuited to and ineffective at managing and
overseeing the broad remedial orders which have been imposed
in certain class action cases.
12
875
AFFIDAVIT
., do swear that the
information p^vided in this statement is, to the best of my
knowledge, true and accurate.
fnATF.l '' ^ / 1 ^/fJaMP \
(DATE)
^\ WANE)
(NOTARY)
876
FINANCIAL DISCLOSURE REPORT
Attachment II 4
Haport Raqulrsd by Uto Ethics
R«tors Act of 1989. Pub. L. No.
101-194, llov«alMr 30. 19S9
(5 U.S.C.A. App. 6, SSlOl-112)
1. T«i»<m BMOiXlag (L*st. camm, Clr*t, altfdl* inltlAl)
Kessler, Gladys
2. Court or Or9«iils«tlaA
D.C. Superior Court
3. Data of toport
3/24/94
4. Tltl* (Artlela III ^aaq%» iDdlcat* actlva oz
mmaXoz utmtuu; Kaglatrat* judges i&dleata
Coll- or pATt-tlaa)
Associate Judge
5. Itaport Type (ehacK approprljkta^t^
Hoalnatlos, D«t«.
I<lal
proprlata typ*)
3/22/94
6. Raportlag Pariod
Jan. 1, 1993
to
Mar. 22, 1994
D.C. Superior Court
500 Indiana Avenue, N.W.
Washington, n.r, Ztinm
a. Ob Um basis oC tba lAforsatleo contal—d la t^la import. It
la, IB By fiplBloo, la ecayllanoa wltb applleabla Ism* and
ll«vl«t#lB{t OfflCftT 81gnaCar«v
(^OmX^ te..a^<^^-\._
IMPORTANT NOTES: The inimtaions accompanying this fcmt must be foOowei Complete all putt,
'*~*'tt the NONE booc for each (cctiOD where jpou have no icportaUe inronnatkn. 5^ on iiat page.
I. POSITIONS. (Reponing individual only; see pp. 7.8 of Instructions.)
POSITION NAME OF ORGANIZATION/ENTITY
m
NONE (Ho rvportabls ptwllloos)
II. AGREEMENTS. (Reporting individual only, see p. 8-9 of Instructions.)
DATB PARTIES A.ND TERMS
n
NONE (Ro r»ponabl« ■graaaaBta)
I am a member of the D.C. Judges' Retirement Fund and eligible for all its
benefits. I am entitled after the age of S5 to retire on a reduced
annuity and after the age of 60 on a full annuity.
NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 9-12 of Instrwaions.)
DATE SOURCE AND TYPE GROSS INCOME
(Honoraria only) (youri, noi spouse's)
n
NONE (Mo r»portabl« non-lnva«t»w)t iDCtMM)
Salary D.C. Government - paid for -judicial duties $278 , 505 . 52
^ Prudential
Insurance Co. Pension from former employer (s)
877
FINANCIAL DISCLOSURE REPORT (cont'd)
Mmmm of Parson Reporting
Kessler, Gladys
D«tQ of Raporr.
3/24/94
IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.
(Indodcs those to spoase and dependent children: use the parentfaeticals '(S)* and '(DC)* to indicate reportabie
nioibanenKots and (ifts received by spouse and dependent children, respectively. See pp.I3-L5 of Instructioas.)
SOURCE DESCRIPTION
D
NONE (ao mvBb r«port«bl« TtlaHiii'i iiin*T or fifta]
Exempt
OTHER GIFTS. (Indndes those to spouse and dcBcsdent cfaUdno; use the parcnthetkab *(S)* and '(DC)' to
Indicate other {Uts received by spoose and dependent children, mp«co»»<y. See pp.l5-lC oT iBstraoOoaa.)
n
SOURCE DESCRPmON VALUE
NONE (lo aiieh zmtortMblm gltXM) Exenpt
s
s
$
$
VI. UABIUTIES. (Indodes those of spoose and dependent children; indicate where appUcaUe, person responsible
ior liability bv using the parenthetical '(S)' for separate liability of spouse, '(J)' for Joint liability of iTpordng
IndiWdoal and spouse, mat '(DC)' for liabOity of a dependent cUld. 3«e pp.i^l8 oTInstnictions.)
CREDITOR DESCRIPTION VALUE CODE*
Q
NONE (SO raporubl* ll«blllUM)
mat oooes: j - sis.ooo or iw< s - su.mi -u sso.ooo l - sm.ooi ts sioo,ooo n - siso,ooi ts UJO.i
■ - $350,001 U> SSOO.OOO O - 5500,001 to $1,000,000 P - Hor* Uuw SI, 000, 000
878
FINANCIAL DISCLOSURE REPORT (cont'd)
NAse ot Person Rvponins
Ycssler , Gladys
Data of Kupor'
3/24/94
VII. INVESTMENTS and TRUSTS - income, value, transactions.
and dependent children; see pp. 18-27 of Instructions.)
(Includes those o( spouse
run* 'ID* •«« •teii.««»*t
■ I ijlt CXQB prloi dlscloaur*.
ZOCOIH
durlDjg
c.
Oroa. v.laa
«t •nd o?
roportlng
pJSiod
0.
TT«as«otlons during zmportlag pwrlod
(I)
(2)
'ST:
(1)
U-P)
(2)
Value
Mathod.,
(0-*l
jjTsar,
■UonV"
li aot aoMBpt £f0B dlacloaura |
Honth-
^3)
Coda
t*)
Gain,
Coda*
fir pxivat*
txaoaaatloB)
NONE (Ho r«port«I>l.
lAccaa, «aa«u, or
txvimmcx.ianm)
' ADP - common stock
A
Div.
J
T
' Hooper Holmes -
A
Div.
K
T
^ AMP - common stock
A
Div.
J
T
t MMM - common stock
A
Div.
K
T
* GE - common stock
A
Div.
K
T
Giant Food - common
stock
A
Div.
j2
T
' IBM - common stock
A
Div.
.2
T
PPIT - common stock
B
Div.
K
T
' Black s, Decker -
common stock
A
Div.
J
T
" Janus Twenty Fund -
mntufll fnnH
A
Div.
K
T
" Nicholas II Fund -
mutual fund
A
Div.
j2
T
" Strong Income Fund -
mutual fund
A
Div.
J
T
" Strong Short Term
Bond Fund - mutual fund
B
Div.
K
T
" Vanguard Explorer
Fund - mutufll fund
A
Div.
J
T
".Vanguard Municipal
Hiqh Yield Bond Fund -
A
Div.
L
T
mutual fund
16 Vanguard Index-Totai
Stock Market Fund -
A
Div .
K
T
mutual fund
■•■ ' Vanguard Municipal
Monev ^;arket Fund
J
T
A
Int.
18 T. Rowe P^ice New
Asia Fund - m&tual fund
A
Div.
J
T
1 1 ■! 'rilii Cod*.l k-^l.OOO or 1m. B-Sl.OOl to S2,&00 C-{2.501 to S.OOO D-SS,001 U> SIS, 000
(Sm Col. B> ( D4) t-S15.001 to S50.000 r-S50.00: to JIOO.OOO C-5100.001 to 51,000 000 B-Horo tMO $1,000,000
!-»iIu. cod... j-sUlsw or I..1 n-hsliO! to SS6.668 !.-?■;. 061 to 5io4,o«i M-ilM.Mi to J5S6,«M
|S«« Col. CI i 031 R-$2S0.001 to $500,000 0-5500,001 to Sl.OCO.OOC P-«or. th.n 51,000,000
3 V.loo Hatbod Cod«.t v-Appr.iMl R-Cosc (rMl •ct.t. only; S-At....a«)t T-C.b/H*rk«t
(S«. Col. C21 U-Boon V.lu. V-Othar b-Ekti».t«l
879
FINANCIAL DISCLOSURE REPORT (oonfd)
t*»mm oi feraon Heportlng
Kessler, Gladys
Dato o' Koport
3/24/94
/ll. INVESTMENTS and TRUSTS - income, value, transactions.
and depeodeat children; tee pp. lS-27 of Instructions.)
(Includes those of spouse
A.
tt>m mm»m\ by \1al09 tJb* i>«r«nth«tJlc«l
B.
IDCOIM
durloa
reporting
period
Oroea valae
at end or
D.
9r«B*ectloafl daring x«partlxig period
IDO UHlrlaiiii «Ji<l apoiiu, •(S)"' for
■•p«£ac« cwMntUp by •?©«•♦,* (DC)-
«xaa9t tcm prior 41»claaur«*
(1)
(»-B)
12)
'Si?:;
(1)
cod«*
(J-P)
<2)
ValtM
S^)
redeop-
If not eotespt. Xxoa di«clo«tuc« |
Hoaxjb-
My
(J)
Coda'
<J-P1
(«)
til ^
NONE (Ho r.port«t>l«
iacoMS, aaseCA, or
craoftACtlona )
i.9 T. Rowe Price
International Fund -
A
Div.
J
T
mutual fund
20 Twentieth Century
Ultra - mutual fund
A
Div.
K
T
21 First Trust Insured
Mnninipal RnnHc; —
B
Int.
K
w3
unit trusts
22 Fairfield Inn - real
estate limited
B
Div.
J
-'
partnership
23 New York City
Municipal Bonds
B
Int.
J
T
24 Maryland Community
Development Bonds
A
Int.
J
T
25 Okla. Housing Finance
Agrpnry RnnrlQ
A
Int.
J
T
26 D.C. Municipal Bonds
A
Int.
J
T
27 Quick & Reilly -
Self-Manayed TRA
B
Div.
K
T
28 Strong Short Term
Bond Fund IRA
C
Div.
L
T
29 Janus Twenty IRA
A
Div.
J
T
30 D.C. Deferred Comp.
Plan
D
Div.
L
V^
31 B.F. Saul - notes
B
Int.
K^
T
32 Strong Opportunity
B
Div.
K
T
33 Garages - real estate
(s)
6
6
6
R^
34 First Trust Insured
Municioal Bonds -
B
Int.
K
w3
1
unit trusts (s)
1
i iDCO^/CAlD Code*: k=Sl,000 or lese B-S1,0C1 to S2,500 C-S2,501 to 5,000 I>=S5,001 to 515,000
iRm^ col. Bl t D41 E-Slb.OO! to SSC.OOO F-SiO,001 tc 5100,000 C-S100,001 to 51.000,000 B-«or« than $1,000,000
: VaTu« Codea: J«515.000 or leaa K-S15,C01 to S5C,000 L=S50,001 to SIOC.OOO H=S100,001 to 5250.000
{Se« Col. Ci £ D3J N-5250.0C1 to 5500,000 05500,001 to 51,000,000 P-More than 51,000.000
2 Value KcU)o<; Codes: Q-^Appraisal R^Cos^ ireai estate only) S = Assesssent T-C*tb/Harltel
tS«e Col. C2) U-Boc*. Value V-Ottier W-Estiioated
880
FINANCIAL DISCLOSURE REPORT (cont'd)
Kesslc-r , Gladys
LaLo c: Mpon.
3/:4/9'!
\/\\. INVESTMENTS and TRUSTS - income, value, transactions, (include ttao» or spouse
■nd depeodent children; see pp. 18-27 of Instructions.)
- ^- pmmCTivtAM at AMmmtm
IndlAVU, wb«r» «ppllc«bl», o>fam£ of
B.
Inco**
duxlas
r«poi-Ung
imrlcN]
Oroas vaXn*
«t aotf of
r«port.ln«
poriod
D.
Tr«iiB«ctlona doxlns xoporclAg pvlod
IiJ'LSKiiSiS'JS''SS5ij;'-'<iirf«r
(1)
(2)
{ST..
<Uv.,
r«ae or
Imlam,
(2)
<C-w)
Uon^
1 £ sol aoM^t. KVB tflacloaor* 1
. ^acmmpz In* prior dl«cioauT«.
Honui-
(3)
coo?
(J-P)
x«fia«otlOB]
NONE (Mo r«porUbl«
lacoaa. assetB, or
txanaACtlons )
35 Bay View Federal S&L
B
Div.
F
T
I3g Public Storage 18 i
1 20 - common stock (s)
D
Div.
L
T
|37 Aura Systems - comition
A
Div.
K
T
38 Hooper Holmes -
contmon stock (s)
B
Div.
L
T
3 9 Boat Bank - common
■ stock (si
A
Div.
J
T
40 Strong Short Term
B
Div.
K
T
mutual fund (s)
41 PPIT - common stock
(s)
D
Div.
K
T
4 2 Vanguard Municipal
Monev Market Fund_ 1 c ^
B
Int.
K
T
43 Amer. Security &
A
Int.
L
T
account (s)
44 Salomon Brothers -
common stock (s)
A
Div.
j2
T
4 5 Systems Comnuter -
common stock (s)
A
Div.
j2
T
46 Wisconsin Water Bond
B
Int.
K
T
i
1
i 1
i 1
1
1 i
']^^'i.r::\ t:iu°^^°;.'-".„oc ;-^:^^Vi(^oo. ^:|t^r^.-,^s^oc,o.c v^ri°\^.v^in:oo.
■^ r-i.n, iM^-".-vi.... ^^^^.^-^-^..0. ?.i--J.;%^'Sk°S^c — "'"
IS— col. C li-ho^-. V..:uo V. ;-.-,; v.r-.-.r,....
881
FINANCIAL DISCLOSURE REPORT (cnnfd)
Naoe o? PorsoD R«port.lng
Kessler , Gladys
Data of Rsport
3/24/94
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (indicate pan of Report.)
^ This amount consists of my 1992 judicial salary of $121,797.32, my 1993
judicial salary of $125,877.80, and my 1994 judicial salary of $30,830.40
(through March 5, 1994). These figures do not include the $7500 a year
which is automatically invested in the D.C. government Deferred
Compensation Plan.
^ These items were either sold during the reporting period, or paid off, so
their value is zero.
^ These unit trusts are exceedingly difficult to value because a substantial
percentage of their principal has been returned over the years. This is
our good faith estimate of their remaining worth. ^^^__^
IX. CERTIFICATION.
In compliance with the pitrvisions of 28 U.S.C S 455 and of Advisory Opinion No. 57 of the Advisory Committee on
Judicial Activities, and to the best of my knowledge at the time after reasonable inquiry, 1 did not perform any adjudicatory
function in vy litigation during the period covered by this report in which I, my spouse, or my minor or dependent diildren
had a finanri.i interest, as defined in Canon 3C(3)(c), in the outcome of such litigatiotL
I certify that all information given above (including information pertaining to my spouse and minor or dependent diildren,
if any) is aocorate, true, and complete to the best of my knowledge and belief, and that any information not reported was
withheld because it met applicable sututory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.CA. app. 7, § 501 et seq., 5 U.S.C § 7353 and Judicial Conference
regulations. Not applicable
Signature (^6;c-rXvA<l- A^ .J^n^^-^-^ ^^ Date March 24. 1994
NOTE: ANY INDIVIDw'aL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA. APP. 6, § 104, AND 18 U.S.C { 1001.)
FILING INSTRUCnONS:
Mail signed original and 3 additional copies to: Judicial Ethics Committee
Administrative Office of the
United Stales Courts
Washington, DC 20544
882
FINANCIAL DISCLOSURE REPORT (cont'd)
haoc of *•*-■: so:
Kessler,
Gladys
3/24/9'i
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (indict, pvt of Report.)
^ This interest was purchased for $10,000 in 1990.
^ This is the valuation given by the D.C. Deferred Compensation Plan. This
valuation is as of September 30, 1993, the last date for which the Plan
has supplied any data.
* On September 30, 1993 my husband purchased 24 parking spaces in the
Elizabeth Condominium, Bethesda, Maryland for $49,000. On December 1, 1993
he sold 10 of the spaces to Mortgage Title and Escrow, 4300 Evergreen Lane,
Annandale, Virginia 22003 ( the Company was establishing an office in
Bethesda and needed parking for its employees) for $45,000, of which he
received $19,305.61 in cash and a one year note for $22,500 at 8%.
IX. CERTIFICATION.
In compliance with the provisions of 28 U.S.C J 455 and of Advisory Opinion No. 57 of the Advisory Committee oo
Judicial Actjvities, and to the best of my knowledge ai the time after reasonable inquiry. I did not perform any adjudicatory
funaion in any litiption during the period covered by this repon in which 1, my spouse, or my minor or dependent children
had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I eeniiy that all informaiion given above (including information pcruining to my spouse and minor or dependent children,
if any) b accnraie, true, and complete to the best of my knowledge and belief, and that any information not reported wis
withheld because ii met applicable suiutory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the acoepunce of gifts which have been
reported are in compliance with the provisions of 5 U.S.CA. app. 7, i 501 et seq., 5 U.S.C i 7353 and Judical Conference
regulations.
Signature ^ (.(^i^ JLjU^^-\ D« March ?4 . }994
NOTE; ANY INDIViAoaL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA. APP. 6, S 104, AND 18 U.S.C { 1001.)
FILING INSTRUCTIONS:
Mail signed oricinal ani) 3 addiiionaJ copies to; Judicial Ethics Committee
Adminisuairvc Office of the
United Slates Couns
Washington, DC 20544
883
FINANCJAL DISCLOSURE REPORT (ooDld)
Kessler, Gladys
D«U» of
3/24/94
VIII. ADOmONAL INFORMATION or EXPLANATIONS. Omttatt p«t .r iKp«t.)
^ (...continued) On March 2. 1994 he sold 3 parking spaces to Schwartz
Properties of Chew Chase. Maryland for t 20, OOP, of which he received
16.247.08 in cash and a one year note for $12,000. payable in $1,000
■nonthlv installments at no interest. _
IX. CERTIFICATION.
In oompliaoce with the provisioLS of 28 US.C. i 455 and of AOvisory Opinion No. 57 of the Advaoty Comminee oo
Judicial AoiviUej, and lo the best of my knowledge at the lime after reasonable inquiiy, I did not perfotin any adjodicatafy
function in any Uugation during the period covered by this report in which I. my spouse, or my minor or depeadeal cbildrea
bad a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I oettify that all information given above (indoding information pertaining to my spouse and minor or dependent Aildrea.
if any) is aocuiaie. tnte, and complete to the best of my knowledge and beliet and that any information not reported was
withheld because it met applicable suintoiy provisions permitting non-disclosure.
1 further certify that earned income from outside employment and honoraria and the acceptance of gifts whidi have been
reported are in compliance with the provisions of 5 U.S.C.A. app. 7, 5 501 et. seq, 5 VS.C i 7353 and Judicial Conference
regulations.
^-^i^C
Signature (^ /o^lU^^ f^^^^J^C-^ CWe March 24, 1?94
NOTE: ANY INDIVIDUXL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAH^ TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U5.CA. APP. 6. S 104. AND 18 U.S.C i 1001.)
FILING INSTRUCTIONS:
1 Mail signed original and 3 additional copies to: Judidal Ethics Committee
AdministratiN'C Office of the
j United Suies Courts
I Washington, DC 20544
884
AttachiDCnt II 5
FIKANCIAL STATEMENT
KET WORTH
Provide a complete, current financial net worth statement which
itemizes in detail all assets (including bank accounts, real estate,
securities, trusts, investments, and other financial holdings) all
liabilities (including debts, mortcages, loans, and other financial
obligations) of yourself, your spouse, and other immediate members of
your household.
A^^r:: car.- h k
LIAEIi:?:^; Cz-.r^Z )^ K |
Cash or r.and i ir. canV.s
C
6000
6000
Nctec pA/alie tc oanj^r -
seruri^
C
c
0
US Government
securities - add
scheaule
'
t
0
Nctes F^/^tle It nanf.*! -
-r.se cured
c
c
0
Listed sec..ri*.ies - adc3
scneduie :
c
4:9SC0
::-'50c
reii*, ;'.t.-
c
0
UniiSLei S-c;;r;-ies -
add scne?',..'^
'
c
0
Ncte.- cavat.e t: others
c
Accounts 4 notes
receivaole:
Due froff. relatives and
friends
0
c
c
A--ccunts and t.lis due
• over 30 days
c
0
0
r-oe ;ro- ^triers
''*£0C
•J:.tai3 ■.r.-:L--t tax
,
Dcjcifu:
c
I
c
C-t.ier .-.: . ii rax and
ir.tcres'-
c
c
c
Real estate o»^ed - ^id
schedule 3
:r,oooc
334000
0
Beii es.: ate ircrt-sages
payatle - adc 5;hedule
0
0
0
Reai estate mortgage*
receivable
c
c
Cr.itte". rorrqages an3
ctner ::*r;r layable
c
0
0
Autos and ctner
perscr.3: crcserty
i20o:
ISOOC
Other Oetts iter.iie:
Cash val j^ life
ms'jrar.T?
0
0
c
Other assr-e
Schedule :■
y.A-::
477230
Total ..a!:il;ties
c
c
Set xcrth
2i7r-:c
v7:s::
625733
Tcta: asset:
;*-j.:'
970^00
625730
Tctal liaDi: 1*. . 'f and
net wcrti.
CONTINGEST LIASCl-ITIE--
CEWERJU. INFORMArrON
ht endorser ccT.^»^er or
guarantor
c
0
C
Are any assets pieaaed?
'Add srrieojle N-
On leases or contracts
c
0
0
Are yc- defendant ir. any
suits ci ieaa. act:cn?
Nc
Lcaal claims
0
c
0
Have you ever ^ntftn
banxj ictcy Kc
Pro\'iSi3r. :c: Fej.-ral
c
0
0
0:r.er cp«-r-a. ~^::
0
C
885
LISTED SECURITIES - Schedule 1
H PPIT
H Boat Bank
H Bay View Fed'l Savings & Loan
H Public Storage #18
H Public Storage #20
H Aura Systems
H Hooper Holmes
W ADP
W Amp
W Black & Decker
W General Electric
W Hooper Holmes
W MMM
W PPIT
6.
,000
shares
47,
250
400
shares
12,
000
3
,000
shares
60,
,000
3,
,000
shares
42,
,000
4,
,000
shares
48,
,000
5,
,000
shares
45,
,000
1,
,500
shares
155,
409,
,250
,500
225
shares
11,
,950
205
shares
12,
,900
317
shares
6,
,975
182
shares
18,
,840
3
,000
shares
40,
,500
198
shares
19,
,800
2
,100
shares
16
127,
,535
,500
886
REAL ESTATE OWNED - Schedule 2
Joint 2220 20th Street, N.W. Apt. 41 250,000
H West Virginia country home 150,000
H 9 parking spaces . ^4 , 000
204,000
887
OTHER ASSETS - Schedule 3
H Notes due
H Wisconsin Water Bonds
H First Trust Insured Municipal Bonds
H Strong Opportunity Mutual Fund
H Strong - Short Term Bond Fund - IRA
H Vanguard Municipal Money Market Portfolio
W Vanguard Municipal Money Market Portfolio
W IRA - Quick & Reilly
W Municipal Investment Trusts
W New York City Bonds
W Maryland State Community Dev. Bonds
W D.C. Municipal Bonds
W Okla. Housing Finance Agency Bonds
W Strong Short Term Bond Fund
W Janus Twenty Mutual Fund
W Vanguard Municipal High Yield Bond Fund
W Vanguard Index-Total Stock Market Fund
W 20th Century Ultra Mutual Fund
W IRA - Strong Short Term Bond Fund
W D.C. Deferred Compensation Plan
W Israel Bond
W IRA - Janus Twenty Mutual Fund
W Strong Income Fund
W Vanguard Explorer Fund
W T. Rowe Price New Asia Fund
W T. Rowe Price International Fund
W Fairfield Inn Limited Partnership
34,500
20,000
35,000
(approx)
23,000
64,000
138.000
314,500
1,000
(approx)
41,050
30,000
(approx)
15,000
10,000
10,000
10,000
21,700
15,850
58,800
16,600
42,575
58,800
99,000
450
2,350
6,725
10,000
7,330
10,000
10.000
477,230
888
I. BIOGRAPHICAL INFORMATION (PUBLIC)
QUESTIONNAIRE FOR JUDICIAL NOMINEES
1. Full name (include any former names used)
Answer: Emmet Gael Sullivan
2. Address: List current place of residence and office
address (es) .
Answer: 1810 Redbud Lane, N.W.
Washington, D.C. 20012 (Residence)
District of Columbia Court of Appeals
500 Indiana Avenue, N.H.
Washington, D.C. 20001 (Office)
3. Date and place of birth.
Answer: June 4, 1947
Washington, D.C.
4. Marital Status (include maiden name of wife, or husband's
neune) . List spouse's occupation, employer's name and
business address (es).
Answer: Nan Lanita Clemmons
Not employed outside the home
5. Education: List each college and law school you have
attended, including dates of attendance, degrees received,
and dates degrees were granted.
Answer:
Howard University 9/64 - 6/68 B.A. 6/68
Howard University Law School 9/68 - 6/71 J.D. 6/71
6. Employment Record: List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or
employee since graduation from college.
Answer:
6/70 - 9/71 D. C. Bail Agency
(D.C. Pretrial Services Agency)
500 Indiana Avenue, N.H.
Washington, D.C.
Part-time interviewer
889
9/71 -12/72
12/72 - 12/73
Neighborhood Legal Services Progrzun
701 4th Street, N.W.
Washington, D.C.
Law Clerk
Judge James A. Washington, Jr.
Associate Judge
Superior Court of the District of Coltimbia
Judicial Lav Clerk
1/74 - 8/80
8/80 - 11/84
11/91 - Pres.
11/84 - 2/92
2/92 - Pres.
Houston and Gardner
615 "F" Street, N.W.
Washington, D.C.
Associate Partner (general practice of law)
Houston, Sullivan and Gardner
921 6th Street, N.W.
Washington, D.C.
Partner (general practice of law)
Frederick B. Abranson Memorial Foundation
Director
(non-profit corporation)
Associate Judge
Superior Court of the District of Columbia
500 Indiana Avenue, N.W.
Washington, D.C.
Associate Judge
D. C. Court of Appeals
500 Indiana Avenue, N.W.
Washington, D.C.
Military Service; Have you had any military service? If
so, give particulars, including the dates, branch of
service, rank or rate, serial number and type of discharge
received.
Answer:
No.
Honors and Awards; List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
Answer;
Awards;
Reginald Heber Smith Fellow
890
February 1993 - Outstanding Alumni Award, McKinley
High School
February 1993 - Outstanding Alumni Award, D.C. Public
School System
March 1993 - Certificate of Appreciation, Bar
Association of the District of Columbia
August 1992 - Award for contributions to the Nation's
Judiciary, ABA Judicial Administration Division
October 1991 - Award for serving as Presiding Judge of
the Probate and Tax Divisions, D.C. Superior Court -
Superior Court Board of Judges
October 1991 - Award for service as a D.C. Superior
Court Judge - Superior Court Board of Judges
9. Bar Associations; List all bar associations, legal or
judicial-related committees or conferences of which you are
or have been a member and give the titles and dates of any
offices which you have held in such groups.
Answer:
D. C. Bar Association
Washington Bar Association
American Bar Association
National Bar Association
Annual Judicial Conference for the District of Columbia
1977 - Present
Board of Directors of the D.C. Law Students in Court
Program - June 1977 to March 1983
U.S. District Court Committee on Grievances - March 1977 to
March 1983
D.C. Judicial Conference Committee - to study "fast-track"
litigation - September 1979 to September 1981
Member - Superior Court Civil Rules Committee -
June 1977 to November 1984
D.C. Judicial Conference Voluntary Arbitration Committee-
October 1980 to October 1982
891
circuit Judicial Conference - 1980 - 1984
Member - Nominations Committee of the Bar Association of
the District of Columbia - 1984
Bar Association of the District of Columbia
(Nominations Committee, 1984)
Member and Chair - Superior Court Probate Rules Committee -
November 1984 to February 1992
Panelist, D.C. Court of Appeals Judicial Conference -
June 14, 1991
Chair, Superior Court Tax Rules Committee -
January 1991 to February 1992
Chairperson, Committee on Arrangements, 1994 Judicial
Conference for the District of Columbia (to be held June
23 and 24, 1994)
10. Other Memberships: List all organizations to which you
belong that are active in lobbying before public bodies.
Please list all other organizations to which you belong.
Answer: North Portal Civic Association
The Lawyer's Club of Washington
(Copy of By-Laws are attached)
11. Court Admission; List all courts in which you have been
admitted to practice, with dates of admission and lapses if
any such memberships lapsed. Please explain the reason for
any lapse of membership. Give the same information for
administrative bodies which require special admission to
practice.
Answer:
Supreme Court of the United States July 7, 1977
United States Court of Appeals for May 1975
the District of Columbia Circuit
United States Court of Military Appeals May 1975
United States Tax Court Jxine 1975
United States District Court for the May 1974
District of Columbia
District of Columbia Court of Appeals December 1973
892
12. Published Writings: List the titles, publishers, and dates
of books, articles, reports, or other published material you
have written or edited. Please supply one copy of all
published material not readily available to the Committee.
Also, please supply a copy of all speeches by you on issues
involving constitutional law or legal policy. If there were
press reports about the speech, and they are readily
avail2Lble to you, please supply them.
Answer: None.
13. Health; What is the present state of your health? List the
date of your last physical exaunination.
Answer: Very good. My last physical exeunination was in
December , 1993.
14. Judicial Office: State (chronologically) any judicial
offices you have held, whether such position was elected or
appointed, and a description of the jurisdiction of each
such court.
Answer:
Associate Judge - District of Columbia Court of Appeals
(February 21, 1992 - Present) - highest appellate court in
the District of Columbia
Associate Judge - Superior Court of the District of Columbia
(November 1984 - February 20, 1992) - Trial court of general
jurisdiction
Both judicial positions were Presidential appointments.
15. Citations: If you are or have been a judge, provide:
(1) citations for the ten most significant opinions you have
written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or
where your judgment was affirmed with significant criticism
of your substantive or procedural rulings; and (3) citations
for significant opinions on federal or state constitutional
issues, together with the citation to appellate court
rulings on such opinion. If any of the opinions listed were
not officially reported, please provide copies of the
opinions:
Answer:
(1)
893
a. Jefferson v. Ourisman Chevrolet. 615 A.2d 582
(D.C. 1992)
b. Donahue v. Thomas, et al.. 618 A. 2d 601 (D.C.
1992)
c. Curincrton v. U.S.. 621 A. 2d 819 (D.C. 1993)
d. Allegheny v. U.S.. 622 A. 2d 1099 (D.C. 1993)
e. Spicer v. D.C. . 636 A. 2d 415 (D.C. 1993)
f. Norman v. U.S.. 623 A. 2d 1165 (D.C. 1993)
g. Lewis V. U.S.. 632 A. 2d 383 (D.C. 1993)
h. Collins V. U.S.. 631 A. 2d 48 (D.C. 1993)
i, Jones, et al. v. U.S.. 625 A. 2d 281 (D.C. 1993)
j. Parks V. U.S.. 627 A. 2d 1 (D.C. 1993)
(2) The citations for the appellate decisions reversing my
trial coiirt judgments are as follows:
a. McGee v. U.S.. 533 A. 2d 1268 (D.C. 1987) -
criminal case wherein the Court of Appeals held
that if the offense of assault is capeible of being
proved pursuant to more than one theory, the jviry
must be instructed on both theories.
b. In re; A.C.. 573 A. 2d 1235 (D.C. 1990) - civil
case wherein the court held that if a patient is
incompetent or otherwise uneible to give an
informed consent to medical treatment, the
patient's decision must be ascertained through the
procedure kno%ni as substituted judgment.
c. Brown v. U.S.. 542 A. 2d 1231 (D.C. 1988) -
criminal case wherein the court held that special
unanimity instruction should have been given.
d. Washington Hospital Center v. Riaas. 575 A. 2d 719
(D.C. 1990) -probate case wherein the coiirt held
that under will dividing trust proceeds among
residuary legatees following death of life
beneficiaries, language providing that if gift
should "fail to taJce effect," then failed gift
would be distributed to other named legatees,
operated as anti-lapse provision.
e. Hessev v. Burden. 584 A. 2d 1 (D.C. 1990) -
administrative agency case wherein the court held
that proposed initiative did not impermissibly
infringe on Mayor's responsibility for assessment
of taxable property.
f. Lewis V. U.S.. 541 A. 2d 145 (D.C. 1988) - criminal
case wherein the court held that misstatements in
the prosecutor's closing argument, not objected to
894
by the defendant, warranted reversal of
defendant ' s conviction ,
(3) Lewis V. U.S.. 632 A. 2d 383 (D.C. 1993)
Berg, et al. v. U.S. . 631 A. 2d 394 (D.C. 1993)
16. Public Office; State (chronologically) any public offices
you have held, other than judicial offices, including the
terms of service and whether such positions were elected or
appointed. State (chronologically) any unsuccessful
candidacies for elective public office.
Answer: None.
17. Legal Career;
a. Describe chronologically your law practice and
experience after graduation from law school
including;
1. whether you served as clerk to a judge, and
if so, the name of the judge, the court, and
the dates of the period you were a cleric;
Answer:
9/71 - 12/72
Reginald Heber Smith Fellow
Neighborhood Legal Services Prograua
Law Clerk
12/72 - 12/73 Judge James A. Washington, Jr.
Associate Judge
Superior Court of the District of
Columbia
Judicial Law Clerk
2. whether you practiced alone, and if so, the
addresses and dates;
Answer: No.
3. the dates, names and addresses of law firms
or offices, companies or governmental
agencies with which you have been connected,
and the nature of your connection with each;
Answer:
1/74 - 8/80
Houston and Gardner
615 "F" Street, N.W.
Washington, D.C.
Associate/Partner (general practice of
law)
895 y.^
8/80 - 11/84 Houston, Sullivan and Gardner
921 6th Street, N.W.
Washington, O.C.
Partner (general practice of law)
b. 1. What has been the general character of your
law practice, dividing it into periods with
dates if its character has changed over the
years?
Answer:
The general character of my practice centered
around the practice of civil law, including:
Probate law, domestic relations, civil litigation,
and landlord and tenant Law. Moreover, I have
represented a number of clients in felony and
misdemeanor cases in the Superior Court of the
District of ColuBibia and in U.S. District Court
for the District of Columbia Circuit.
2. Describe your typical former clients, and
mention the areas, if any, in which you have
specialized.
Answer :
In view of the fact that my law practice was
general in nature, there was no typical client
profile for a wide range of individuals and
entities that I represented during the course of
my career. For exsunple, in addition to having
represented many persons, including professionals
in matters involving civil litigation, criminal
law, fiduciary and probate law, and domestic
relations, I have represented many corporations
and a university.
I have specialized in the areas of civil
litigation; fiduciary relations and probate law;
landlord and tenant law, and the prosecution of
actions pursuant to the "Master-Metered Apartment
Buildings Act of 1980." See D.C. Code § 43-541,
et sea.
c. 1. Did you appear in court frequently,
occasionally, or not at all? If the
frequency of your appearances in court
varied, describe each such variance, giving
dates .
(
896
Answer: Frequently.
What percentage of these appearances was in:
(a) federal courts; 10 %
(b) state courts of record; 0 %
(c) other courts.
(D.C. Court of Appeals) 1 %
(Superior Court of D.C.) 89 %
3. What percentage of your litigation was:
(a) civil; 75 *
(b) criminal; 10 %
(c) administrative. 15 %
4. State the number of cases in courts of record
you tried to verdict or judgment (rather than
settled) , indicating whether you were sole
counsel, chief counsel, or associate coiinsel.
Answer:
Circa 150-200 cases tried to verdict or
judgment. To the best of my recollection,
realizing that the relevant period of time
was from December 1973 - November 1984, I was
sole counsel in circa 50 % of those cases and
either chief or associate counsel in the
remaining 50 % of those cases.
5. What percentage of these trials was:
(a) jury; circa 15 %
(b) non-jury. circa 85 %
18. Litigation; Describe the ten most significant litigated
matters which you personally handled. Give the citations,
if the cases were reported, and the docket number and date
if xinreported. Give a capsule summary of the substance of
each case. Identify the party or parties whom you
represented; describe in detail the nature of your
participation in the litigation and the final disposition of
the case. Also state as to each case:
a. the date of representation;
897
b. the nzune of the court and the nzune of the judge or
judges before whom the case was litigated; and
c. the individual name, addresses, and telephone
numbers of co-counsel and of principal counsel for
each of the other parties.
Answer;
I have provided this information for significant cases that
I can recall.
I. (a) Lorena Smith Cabaniss. Executrix of the Estate of
Charles M. Cabaniss v. Stephanie Cabaniss and Anaella
D. Ferguson. Conservator - Intervener. Civil Action No.
12651-79, D.C. Superior Court;
(b) Party represented — Angella Ferguson, M.D.
(c) Cotinsel for the other parties —
Hilliiun A. Bradford, Jr.
Hogan & Hartson, Counsel for Plaintiff
815 Connecticut Avenue, N.W.
Washington, D. C. 20006
(202) 637-5600
(d) Oral argument on cross motions for summary
judgment, July 31, 1981, before Judge Timothy G.
Murphy ;
(e) The issue in this case was whether a transfer of
substantial cash and negotiable instrtiments from a
doctor to his sister, to be held by the sister for
the benefit of the doctor's handicapped daughter,
constituted an irrevocedsle inter vivos trust or,
upon the death of the doctor three days subsequent
to the transfer of funds, passed pursuant to the
terms of the doctor's testamentary trust. Upon
the death of the doctor, his Executrix commenced a
suit against the said sister to recover the funds.
My client, the daughter's motion and conservator,
intervened in the pending suit to protect the
interest of the daughter.
(f) I researched, prepared and argued a motion for
siimmary judgment, advocating that an irrevocable
inter vivos trust had been created. Judge Murphy
agreed emd granted my motion. Attorney Bradford
appealed the decision to the District of Columbia
Court of Appeals which affirmed Judge Murphy's
ruling in an opinion which may be found at
Cabaniss v. Cabaniss. 464 A. 2d 87 (D.C. 1983).
10
898
(g) This case is significant because the issue
presented, which was a novel one in this
jurisdiction, raised numerous questions regarding
the applicaJaility of varying legal theories
involving the construction of trusts, principal-
agency relationships, gifts causa mortis and
probate law.
II. (a) From September 1980 - November 1984, on behalf of
The Washington Gas Light Company, I prosecuted, in
the Superior Court of the District of Columbia,
more than fifty (50) civil actions seeking the
appointment of Receivers pursuant to the "Master-
Metered Apartment Buildings Act of 1980," D.C.
Code § 43-541, et sea.
This law was passed by the City Counsel in 1980,
to afford the utility companies a remedy in cases
in which the owners of Master-metered apartment
buildings had accumulated outstanding arrearages
on utility bills but, nonetheless, the utility
companies were powerless to terminate service to
the buildings. The new law provides that in such
a situation the utility company may commence civil
actions seeking the appointment of a Receiver to
collect future rents from the tenants of such
buildings and apply said rents to future bills for
utility service provided to the buildings. The
Receiver continues to function as such until the
owner remits payment- in- full of the original
arrearage which was the subject of the petition
seeking the appointment of a Receiver.
The significance of these cases was that the law
was new and unprecedented. It was a challenge to
assist in not only educating the judiciary about
this law, but to also assist as an advocate in its
interpretation.
All of the aforesaid cases came on to be heard
before various Superior Court Judges on the
Motions of the utility company for the appointment
of a Receiver.
III, (a) In re; Guardianship of Janetta Moore. Guardianship
Nvimber 56-77 (Petition for Removal of Guardian) ,
D. C. Superior Court, 1981.
(b) Party represented — The National Bank of
Washington;
(c) Counsel for the other Party —
11
899
Joseph L. Gibson, Jr.
1850 "K" Street, Northwest
Suite 880
Washington, D. C. 20006
(present address and telephone are
unknovm to me)
(d) In this action, a petition was filed seeking the
removal of The National Bank of Washington as
Guardian of the Estate of Janetta Moore. The
petition alleged financial management problems
associated with the management of the ward's
estate and also alleged that the consent of the
mother of the ward, to the appointment of the Bank
as Guardian, was an unknowing consent. The action
was tried before Judge Margaret Haywood who, on
September 30, 1981, found in favor of the National
Bank of Washington and dismissed the complaint for
removal .
The significance of this case was the fact that it
involved an estate valued at approximately One
Million Dollars ($1,000,000), one of the largest
active guardianship cases then under supervision
of the Superior Court. The resolution of the
issues presented for review required a thorough
analysis of a Court-appointed fiduciary and the
issue of the appointment of a corporate fiduciary,
as guardian of an estate over the objection of a
natural parent who, by virtue of statute, would
normally have priority as to the appointment of
guardian.
IV. (a) In re; Application of Howard University. Case No.
13416, Board of Zoning Adjustment, Washington,
D.C.; March 25, 1981 and May 25, 1981.
(b) Party represented — Howard University —
On behalf of Howard University, I petitioned the
Board of Zoning Adjustment for the granting of
special exceptions under the zoning regulations
which would enable the University to amend its
central campus plan. Although a campus plan had
been approved by the Board in 1975, the plan, in
1980, was in need of drastic modifications as a
result of the University's acquisition of new
facilities, its development of new technology and
a dire need for additional space.
12
900
The case was significant because the University,
which is land-locked, was seeking approval to,
inter alia, expand its boundary into the LeDroit
Park Historic District and to utilize existing
structures in that District to accommodate Howard
University Hospital. Although the District of
Columbia was not represented by its Corporation
Counsel, opposition to the proposed amended plan
came from The Department of Transportation, Office
of Planning and Development and numerous community
organizations and citizen groups. The hearings
before the Board were held on March 25, 1981 and
May 25, 1981. On March 22, 1982, the Board of
Zoning Adjustment granted the Application of
Howard University.
V. (a) Hill v. Liner - 336 A. 2d 533 (D.C. 1975) -
(b) Party represented —
John Hill and John R. Pinkett, Inc. ; trial judge -
The HonorJible George Draper, D.C. Superior Court.
On behalf of Mr. Hill and the Pinkett Corporation,
I defended an action for conversion of an
automobile parked and later abandoned by a tenant
of the property management corporation. On appeal
from an adverse verdict in the trial court, my
clients prevailed. The case is significant
because the Court of Appeals articulated a
distinction between the concepts of "abandoned"
versus "parked" automobiles for prosecution and
defense of conversion actions.
VI. The following are the names of ten attorneys who may
have opinions about me regarding my judicial
competency :
(a) Jacob A. Stein, Esq.
1100 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 737-7777
(b) Steven A. Hamilton, Esquire
5301 Wisconsin Avenue, N.W.
Washington, D. C. 20015
(202) 364-1434
(c) Deborzdi Long-Doyle, Esquire
Assistant United States Attorney
Office of the United States Attorney
555 4th Street, N.W,
Washington, D.C. 20001
13
901
(202) 514-6930 ^-^^
^^-^
(d) Donna Wullcan, Esquire
1115 Massachusetts Avenue, N.
Washington, D.C. 20005
(202) 682-3909
(e) Wayne P. Williams, Esquire
Senior Litigation Counsel
U. S. Department of Justice
Criminal Division - Fraud Section
p. O. Box 28188
Central Station
Washington, D.C. 20038
(202) 514-0823
(f) Angela Jordan Davis, Esquire
Director, Public Defender Service of D.C.
451 Indiana Avenue, N.W.
Washington, D.C. 20001
(202) 628-1200
(g) C. William Tayler, Esquire
Whiteford, Taylor 6 Preston
Suite 400
888 17th Street, N.W.
Washington, D.C. 20006-3939
(h) Thomas Hylden, Esquire
Baker & Hostetler
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 861-1500
(i) Michael M. Hicks, Esquire
1133 15th Street, N.W.
Washington, D.C. 20005
(202) 872-1155
(j) John E. Scheuermann, Esquire
700 E Street, S.E.
Washington, D.C. 20003
(202) 547-9180
19. Legal Activities: Describe the most significant legal
activities you have pursued, including significant
litigation which did not progress to trial or legal matters
that did not involve litigation. Describe the nature of
your participation in this question, please omit any
information protected by the attorney-client privilege
(\inles8 the privilege has been waived) .
14
902
Answer:
The most significant legal activities Z have pursued are as
follows:
(1) Member, Jury Plan Committee that developed the one
day/one trial juror plan in Superior Court of the
District of Columbia. The juror plan was developed to
implement congressional legislation that radically
modified the then existing jury selection procedures
for the District of Columbia. The period of jury
service was reduced from two weeks to one day, if an
individual was selected. The new legislation also made
jury service mandatory for every eligible adult in the
District of Columbia, including lawyers and judges.
Accordingly, it was imperative to develop an
appropriate plan to accommodate a larger pool of
prospective jurors to serve over a shorter period of
time.
(2) Cast, two juror education movies. One movie is shown
on a daily basis in the D.C. Superior Court to all
prospective jurors who are summoned for jury service.
The purpose of the movie is to acquaint those jurors
with the procedures they will follow if they are
selected to serve on a jury. The second movie was
produced by the Council for Court Excellence. It is
shown to high school students across the country and, I
am informed, outside the United States, in an effort to
acquaint the viewer with an appropriate perception of
the role of a juror in a United States Court.
(3) Panelist, D.C. Court of Appeals Judicial Conference,
June 14, 1991.
(4) U.S. District Court Committee on Grievances -
March 1977 to March 1983
(5) Board of Directors of the D.C. Law Students in Court
Program - June 1977 to March 1983
(6) D.C. Judicial Conference Committee - to study "fast-
track" litigation - September 1979 to September 1981
(7) D.C. Judicial Conference Voluntary Arbitration
Committee -- October 1980 to October 1982
(8) Member - Nominations Committee of the Bar Association
of the District of Columbia - 1984
(9) Member - Superior Court Civil Rules Committee - June
1977 to November 1984
(10) Member and Chair - Superior Court Probate Rules
Committee - November 1984 to February 1992
15
903
(11) Chair, Superior Court Tax Rules Committee - January
1991 to February 1992
(12) Chairperson, Committee on Arrangements, 1994 Judicial
Conference for the District of Columbia (to be held
June 23 and 24, 1994)
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated receipts
from deferred income arrangements, stock, options,
uncompleted contracts and other future benefits which you
expect to derive from previous business relationships,
professional services, firm memberships, former employers,
clients, or customers. Please describe the arrangements you
have made to be compensated in the future of any financial
or business interest.
Answer:
As an employee of the D.C. Court of Appeals, I participated
in the District of Columbia Deferred Compensation Plan. As
a participant, a portion of my gross salary is deferred
until I retire. I also expect to receive my earned judicial
retirement benefits.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the categories
of litigation and financial arrangements that are likely to
present potential conflicts-of-interest during your initial
service in the position to which you have been nominated.
Answer:
I will resolve any potential conflict of interest by
disclosing to the appropriate parties the nature of the
potential conflict and by recusing myself if and when
appropriate. My conduct will be guided by the Code of
Conduct for Judges issued by the Administrative Office of
the United States Courts.
Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during
your service with the court? If so, explain.
Answer: No.
List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
16
904
interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more (if you prefer to do so,
copies of the financial disclosure report, required by the
Ethics in Government Act of 1978, may be substituted here.)
Answer:
See attached Financial Disclosure Report.
Please complete the attached financial net worth statement
in detail (and schedules as called for) .
Answer: My financial net worth statement is attached.
Have you ever held a position or played a role in a
political ceunpaign? If so, please identify the particulars
of the ceunpaign, including the candidate, dates of the
campaign, your title and responsibilities.
Answer : No .
17
905
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some time to participate in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances
and the eunount of time devoted to each.
Answer:
I have served as a judge for the past nine years.
Accordingly, my outside activities haVe been restricted by
the Code of Judicial Conduct for United States Judges. I
have made time, however, to interact with area high school
students at annual Law Day ceremonies. I have also
participated in the filming of two juror education movies.
One movie is presently shown to all prospective jurors in
D.C. Superior Court. The other movie is shown to high
school students across the country in an effort to educate
them regarding their future role as jurors.
The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a judge
to hold membership in any organization that invidiously
discriminates on the basis of race, sex, or religion. Do
you currently belong, or have you belonged, to any
organization which discriminates — through either formal
membership requirements or the practical implementation of
membership policies? If so, list, with dates of membership.
What you have done to try to change these policies?
Answer: No.
Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts?
If so, did it recommend your nomination? Please describe
your experience in the entire judicial selection process,
from beginning to end (including the circumstances which led
to your nomination and interviews in which you
participated) .
Answer:
There is a selection commission in my jurisdiction that
recommended my nomination to my jurisdiction's elected
representative to the House of Representatives. I submitted
to the Commission answers to a questionnaire. Thereafter, I
was interviewed by both the commission members and the
congressional representative, who then recommended my name
to the President. I have also been interviewed by officials
18
906
of the Department of Justice, the Federal Bureau of
Investigations and the American Bar Association.
4 . Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
interpreted as asking how you would rule on such case,
issue, or question? If so, please explain fully.
Answer: No.
5. Please discuss your views on the following criticism
involving "judicial activism."
Answer :
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism
that alleges that the judicial branch has usurped many of
the prerogatives of other branches and levels of government.
Some of the characteristics of this "judicial activism" have
been said to include:
a. A tendency by the judiciary toward problem-solution
rather than grievance-resolution;
b. A tendency by the judiciary to employ the individual
plaintiff as a vehicle for the imposition of far-
reaching orders extending to broad classes of
individuals;
c. A tendency by the judiciary to impose broad,
affirmative duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
e. A tendency by the judiciary to impose itself upon other
institutions in the manner of an administrator with
continuing oversight responsibilities.
Answer:
I have been a trial judge and an appellate judge for
the past nine (9) years. I believe that my record over
the past nine years reflects an appropriate awareness
on my part of my role as a member of one of three co-
equal branches of government. I am acutely aware that
19
907
a judge is constrained by certain hallmarks of judicial
decision making:
(1) the judge must listen to the witnesses and
arguments of both sides;
(2) the judge must make a decision on every
grievance presented; and
(3) the judge must justify his or her decision by
applying the correct law agreeably to the
Constitution. These safeguards make it more likely
that a judge's decision regarding an appropriate
remedy will be reliable and well-considered.
20
908
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910
Schedule "B"
Mortaaes
Lincoln Service Corporation
(1st Trust - 1810 Redbud Lane, N.W.
Washington, D.C. 20012
Citicorp (Home Equity Loan)
1810 Redbud Lane, N.H.
Washington, D.C. 20012
First American Bemk
1920 - 10th Street, N.W.
Washington, D.C.
1/2 of mortgage
$ 190,000.00
50,000.00
30,000.00
TOTAL
$ 270,000.00
911
Schedule "A"
I.TSTED SECURITIES*
GEICO
McDonald ' s
Telefon De Hex
Fid SLCT Home Finance
Schwab Money Market Fund
AT&T
Hovell , Inc
T. Rowe Price Equity Fund
T . Rowe Price Int • 1 Stock Fund
Thompson 0pp. Class B
Merrill Lynch Latin "B"
3,133.88
30,021.00
20,842.50
4,329.74
148.72
6,683.00
6,063.00
6,137.09
7,356.89
14,626.00
20,592.00
TOTAL
119,933.82
* All listed securities are either in I.R.A. or KEOGH Retirement
Accounts .
\
Schedule "C"
1810 Redbud Lane, N.W.
Washington, D.C. 20012.
912
Real Efifai-^
400,000.00
1920 - 10th Street, N.W.
Washington, D.C.
(1/2 of value in view of
co-ownership) 50,000.00
^^■^^^^ $ 450,000.00
913
Itaport naqulrad by Um ItAlca
FINANCIAL DISCLOSURE REPORT ^'iTn-^fH^snit't^:
1. rmoB IMparUoo (l«t «•»•. «"«. mlddl. InlU.l)
SULLIVAN, Emmet G.
2. Coun or orgaolxatloo 3. Dot* of Raporc
U. S. District Court
for the District of Columbii March 25,
1994
4. Tltla (ATLlcl* III 1udfl«« tndlc«l« •ctlv» or
Molar ototu.; Hojl.txoM ]udg«> lodlcoM
foil- or port-U»«]
Article III Judge (Nominee)
5. Kaporx Typa (cnaclc approprlata typo)
y amnatlon. Data 3/22/94
Xoltlal AADual riAal
6. Raportl&g Parlod
1-1-93 through
2-25-94
7. CboaOora or off lea Addraaa
District of Columbia Court of
Appeals
a. On Xhm baala of tba loforaatloo coaulo
la, la ay oplDloa, in coapllaoca wltb a
ragulatlooa
B.viM#1ng nfflcrar Sl^tiatura
ad lo Ula Paport, It
ppllcabla lawa and
IMPORTANT NOTES: The instrucaons accompanying this form must be foOowetL Complete all puts,
checking the NONE box for each section where you have no ivporuble Infonnation. Sipi on last page.
I. POSITIONS. (Reporting individual only, see pp. 7-8 of Instructions.)
POSITION NAME OF ORGANIZATION/ENTITY
n
NONE (Ho raportabla poaltlona)
Director, Frederick B. Abramson Memorial Foundation
Co-owner of Rental Property known as 1920 - 10th Street, N.-W.
"J
Washington, D.C.
II. AGREEMENTS. (Reporting individual only, sec p. 8-9 of Instructions.)
DATE PARTIES AND TERMS
Q
NONE IVo T«poz-t«bl* Agr*«aanta)
•£ •d>
NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 9-12 of Instructions.)
DATE SOURCE AND TYPE GROSS INCOME
(Honoraria only) (jwu". "O' spouse's)
D
NONE (Mo raportabla ooa-lnvaataaot Incoao)
Salary D. C. Court of Appeals
Net rental
1 nrnme
1920 lOth street. N.W.. Wash.. D.C.
S 141,700.00
S 1.798.00
$
$
$
914
FINANCIAL DISCLOSURE REPORT (cont'd)
SaaB of r«r*oB taportlBQ
Emmet G. Sullivan
D«t« or Roporx
March 25,
1994
VII. INVESTMENTS and TRUSTS - income, value, transactions, (indudes those or spouse
and dependent children; see pp. 18U27 of Instructions.)
P—eriptXoo of Asaat*
(iflcludlDQ crust mM9mXM)
ZndloaM, wtMn appllc«til«, mmms of
"(J)" fox joint o<ni»cinlp of r«port-
iBQ ladlviau*! •DC tpoTiM, 'isy tor
Mrficraia omkaratup &y •pou»«. '(DC)*
iDTan«nlilp try &«p«oduit c&ild.
PlAM •(XI* aft*! •acb,«»wt
■napt trim prior disclosura-
1
„
durloa
oroat ymlnm
•t Mid of
rsportlng
TzAAMctloBs daring fvporUag parlod
Exempt
(2)
^:
r«ot or
mt. 1
tl)
codo^
(J-P)
12)
«>ltl«
Cod.'
(O-X)
■Mzgar,
radaop-
tlonl
U not naspt froft dl»clo«ur« |
HonUi-
»«y
(3)
14)
Oait),
Cod«^
Ifc-H)
(it prlvfta
ir4A»«otioa]
NONE rvo raporubla
lacoaa, •■■•ts, or
traABACtlonal
* Common stock solely
KEOGH Account:
ATiT
D
T
McDonald' s
E
T
' Novell
D
T
6
Telefonos Mex.
E
T
7
Thompson Fund
D
T
a
Merrill-Lynch Latin
E
T
9
I.R.A. Account:
10
GEICO
C
T
11
McDonald' s
C
T
12
Telefonos Mex.
C
T
13
Fid. sel. Fund
r
T
n I.R.A. Account(s)
T. Rowe Price •v
>
Int. Stock Fund/
D
T
n
D. C. Deferred
F
T
" Compensation Plan
c;nlplv nwnpH hv mp
le
19
20
1 Ineoao/S*lD Coteai atl.OOO OI !••• »-S1.001 U> S2,S00 C-S2.S01 U S.OOO I>-tS.O01 to SIS. 000
rs» Col. »1 I D41 1-S15.001 to 5M.000 P-5!o,00) Co SlOO 000 O-jlOO.OOl to jl.OOO.OOO ••Mor. tMo Jl, 000^000
; t«l». Coo... J-lliltM or I«»l %-hi.ttii to lii.iti L-i56,4si to !l64,Mj >i.J164,6Sl to JJJt.SJi
ISO* Col. CI i 031 11-S250.001 to S500.OOO O-5500.001 to 51.000.000 P-Hor. Ui.n SI. 000.00? , ,, ,
i y.l.. Mot^oJ SoJ~: a-Apprii..l >>-Co.t lr~l ..t.t. only) 9'Ui..u«it I.C*.li/H.rk.t
(S> Col. C3I u-»oo» v.io. v-otmr ic«rti».t«)
915
FTNANCIAL DISCLOSURE REPORT (oonid)
■«■■ of VsTBoo Kaporxieg
Emmet G. Sullivan
Data of K*porx
March 25,
im
IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.
(Indudes those to fpoutc ind dqieodeni duldm: use tbe parenthetlcals *($)* and '(DC)' to Indlcmte reporuMe
rcimbuncmcDts and (lft5 received b> tpousc and dependent ctaiJdreo, nspecthrly. Sec pp.L3-L5 of InttructkMu.)
Q
SOURCE
NONE (le .
DESCRIPTION
or glfta)
V. OTHER GIFTS. (Indudcs tbotc to ipoiisc and deaaident children; use the parathelicals '(S)* and '(DC)* to
indicate other gifts recti red by cpoiue and dependent diiidreii, reapecMwIy. See pp.l5-l( of InftmrtiMH.)
H
SOURCE
NONE (Ikp aoeh r«porubl« gifts)
DESCRIPTION
VALUE
VI. LIABILITIES, (includes those of ipoiuc and dependent children; indicate wliere applicable, person responsible
for iiabUity br using the parenthetical '(S)' for separau liabilitv of spouse, '(J)' for joint liability of reporting
individual ana spouse, and '(DC)' for liability of a dependent child. Mc pp.tfi-I8 oTInstmctiofis.)
DESCRIPTION VALUE CODE*
D
CREDITOR
NONE (lo raporubla llulllUM)
First American Bank
Mortgage
Securing Rental
Property known as
1920 10th Street, N.W.
Washington, D.C.
WKJa cooia:
3 ' sis, 000 or iM« a - 115,001 tc sso.eoo i <
• - S2S0,001 to SSOO.OOO O • tSOO.OOl to $1,000,000 r '
tso,ooi to tlOO,000
Mar* ttiu tl, 000, 000
M • 1100,001 ts UM.OOO
916
FINANCIAL DISCLOSURE REPORT (cont'd)
■«■• of Ptuod tmfiortXag
Emmet G. Sullivan
Dat* ot aapon
March 25,
1994
VIII. ADDITIONAL INFORMATION or EXPLANATIONS. ODdJoK put or Rcpon.)
None that I am presently aware of.
IX. CERTIFICATION.
la compliance with the provisions of 28 U.S.C 5 455 and of Advisory Opinion No. 57 of the Advisory Committee on
Judicial Activities, and to the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudicatory
fiinction in any litigation during the period covered by this report in which 1, my spouse, or my minor or dependent children
had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
1 certify that all information given above (including information pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported wis
withheld because it met applicable statutory provisions permitting non-disclosure.
I further oerti'y that earned income
reported are in compliance with the pn
regulations
Signaiuri
e employment and honoraria and the acceptance of gifts which have been
U.S.CA. app. 7, i 501 et seq., 5 U.S.C { 7353 and Judicial Conference
Due
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJtCr TO CIVIL AND CRIMINAL SANCHONS (5 U.S.CA. APP. 6. { 104, AND 18 U.S.C { 1001.)
Mail
signed original
and 3 additional
FILING INSTRUCTIONS:
copies to: Judicial Ethics Committee
Administiative Offlce of lite
United Sutes Courts
Washington, DC 20544
917
AFFIDAVIT
I, Emnet G. Sullivan , do swear that the
information provided in this statement is, to the best of ny
knowledge, true and accurate.
April 4. 1994
' ^ X/-^^^
(Date)
(Name)
(NOTARY)
My Conanisaon Espiies Octobsr 31. 1S34
918
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ThJ TRXMBMITOXI. SHEET
TIKE D0Etl;30 P.N.
OXTE: March 25, 1994
HaXEi Geri Kyler FIBM/COMPMnr: Judge Emmett Sullivan
CIT7/8TXTB: Washington, D.C.
BECEIYING no. TELEFEOKB HO. t 626-8840
COmriBMATIOH TBLBFHOIIE HO. t
TOTAL HO. or VA6SS (IHCL. THIS FAQB) : 4
CESCSIPTZOH 07 DOCUKBHT: By-Lavs of the Latryers' Clxib of Washington
CLIEHT/CASEt Lawyers' Club ATTOBMBYJ KWParkinson
XESSAOE:
If there is a problen with this transmission, please contact (202)
457-1659.
FOR OmCE SERVXOES USB OKLT
TiM Racaivad
Tina Complatad _
Coaiplatad By
919
BY-IAWS OF lAWYERS' CLDB OF WASHINGTON
Novejnber 8, 1974
Amended May 20, 1982.
• Section 1 (Section 5)
Presiding Officers
*.-.-, .---'At all meetingrs of tihe Cliib^the Presidenfi'/er Mti"'^'
his absence the Vice President, or in the absem=e of -"both
of them, any member selected upon motion shall preside.
Section 2
Duties of the Officers
. ' ■' ' ■' a.- President- The. Pxesident.- shall conduct all
meetings of the Club and exercise all powers and perform
.all duties usually incident to the office.
b. Vice President. The Vice President shall
perforin all the duties and have the powers of the President
in the absence of the latter.
c. Secreteiry-Treasurer. The Secretary-Treasurer
shall keep the seal and records of the Club; record the
minutes of each meeting of the Club and of the Board of
Governors; send out all official notices; keep an accurate
and up to date record of the names and addresses of all
members; and have possession £md supervision over the
property belonging to the Club. He shall also keep the accounts
of the Club; deposit all moneys of the Club; and report
to the Club at each stated meeting and at the Annual Meeting
the balance of money on hand. The funds of the Club shall
be siibject to withdrawal upon his signature or upon the
signature of any other officer of the Cl\ib and his accounts
shall be subject to audit.
Section 3
Board of Governors
•The Board of Governors shall meet when called by
the President or Secretary-Treasiirer . The Secretary-
Treasurer shall keep the minutes of each meeting of the
Board. The Board shall have power to make such rules and
take such actions, not inconsistent with the Constitution
and By-Laws as shall be necessary for the protection of the
property and the best interests of the Club and shall have
the general management of its affairs. The Board shall
report at each meeting any business which in its judgment
requires the action of the membership of the Club.
920
Section 4
Election of New Members
Candidates for membership, active and associate,
shall .b« elected or excluded by the -Board of Governors by
ballot, a' qudrum of said Board f 6r^ sai'd ■•piirpose being at
least six (6) members thereof, and if there are' two or
more negative votes in the Board the candidate shall be
refused admission, provided that nothing herein contained
shall be construed to prohibit the renomination for
membership in the Club of any member of the Bar after
the lapse of twelve months from the date of his previous
^ .nomination.
Every candidate must be proposed in writing to
the Board by at least two members of the Club, who shall
send to the Secretary the name of the candidate, his
'"• . office address and a statement of his qualifications.
No C£mdidate shall be voted on unless he is personally
known to at least three members of the Board of Governors,
and until his name together with the names of the members
proposing him shall have been mailed to each member of
the Club at least thirty days prior to the meeting of
the Board at which his name may be considered. The Board
shall consider all communications respecting the candidate
and make diligent inquiry as to his character and quad.i-
fications. Seven (7) or more votes by active or senior
members of the Club against a particular candidate shall
prevent the Board's consideration of that camdidate.
Section 5
Annual Dues and Assessment
The emnual dues of all categories of members shall be $30,
payable in advance. The Board of Governors, upon the
recommendation of the Secretary-Treasurer, shall fix such
assessments against the membership of the Club each year as it
shall deem necessary to keep the Club in sound financial
condition. I£ said annual dues «md assessments are not paid
within sixty (60) days after written billing therefor from the
Treasurer, the Board of Governors may in its discretion suspend
or expel a defaulting member. Any member who is unable, by
reason of incapacity or permanent residence outside of the
metropolitan are of the District of Columbia, to attend Club
functions may, upon witten request to the Board of Governors, be
excused by the Board in its discretion from the payment of annual
assessments. The payment of annual dues shall, however, be
mandatory.
921
- 3 -.
Section 6
Resignations, Suspensions and Expulsions
a. The resignation of any meniber of the Club
in good standing may be accepted by the Boaird of Governors
at anyof i-ts meetihgs-.' ••■■■• ^ •••••■.•■-■ -
b. Any merabor ::■./ \.: ruspended or expelled for
misconduct in his relationship to the Club or in his
profession by a vote of not less than two-thirds of the
nenbers of the Board of Governors at any of its meetings.
Section 7
Amendments
•V, These By-Laws may be amended at any Annual or
stated meeting or any special meeting called for that
purpose, by a two-thirds vote of the active and senior
members of the Club in attendance at that meeting provided
notice of the proposed amendment or amendments shall have
been mailed by the Secretary to every member in good
standing at least ten (10) days in advance of the meeting
at which the amendment or amendments are to be submitted
for adoption.
NOMINATIONS OF DIANA G. MOTZ AND ROB-
ERT MANLEY PARKER, TO BE U.S. CIRCUIT
JUDGES; RICARDO M. URBINA, RICHARD A.
PAEZ, DENISE PAGE HOOD, PAUL L. FRIED-
MAN, AND WILLIAM F. DOWNES, TO BE U.S.
DISTRICT JUDGES
WEDNESDAY, MAY 25, 1994
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 2:34 p.m., in room
628, Dirksen Senate Office Building, Hon. Dennis DeConcini pre-
siding.
Also present: Senator Simpson.
OPENING STATEMENT OF SENATOR DeCONCINI
Senator DeConcini. The Senate Judiciary Committee will come
to order.
Ladies and gentlemen, we have a number of nominees today and
we also have a number of colleagues, both from the House and the
Senate, to introduce them. Due to scheduling and what have you,
I am going to take the Senators who are here and the House Mem-
bers that are here and have them testify, if they care to make their
introductory remarks.
Before doing so, let me say this afternoon the Judiciary Commit-
tee is going to conduct hearings on seven nominees, two for the po-
sition of circuit court and five for the position of Federal district
court. As is customary, the nominees will be introduced, as I indi-
cated, by their Senators and Representatives who are here, £ind we
will proceed with that in just a moment.
There have been some statements of opposition to some of the
nominees and the record will remain open. All the nominees have
answered the questions that have been presented to them by the
Judiciary Committee, and portions of those questionnaires will be
printed in the record as part of this hearing.
It is also my understanding that the committee has received
written testimony concerning several of the nominees, particularly
nominees Paez and Urbina. The record of this hearing will be kept
open for a period of time, determined by the chairman, in the event
that any other written testimony is offered or other members wish
to submit written questions for these particular members.
(923)
924
This afternoon, we will first take up with Senator Sarbanes.for
the introduction of Diana G. Motz to be U.S. Circuit Judge for the
Fourth Circuit. Senator Sarbanes, we are very pleased to have you
here, and you may proceed.
STATEMENT OF HON. PAUL S. SARBANES, A U.S. SENATOR
FROM THE STATE OF MARYLAND
Senator Sarbanes. Mr. Chairman, thank you very much.
I am very pleased to appear before you to introduce to the com-
mittee Judge Diana Gribbon Motz, who has been nominated by
President Clinton to be the U.S. Circuit Judge for the Fourth Cir-
cuit.
Diana Motz has an extraordinarily distinguished record of both
professional practice and public service. A native of Washington,
DC, she is an honors graduate of Vassar College, an honor grad-
uate of the University of Virginia Law School.
For over 25 years since finishing law school, she has been active
in the practice of law in Maryland, in both the public and private
sectors. She began her career with our city's largest law firm.
Three years later, in 1972, she joined the Maryland Attorney
General's Office, where she served as an assistant attorney general
to begin with and then moved on to more responsible positions
within the office over a 14-year tenure. During the last 4 years, she
was the chief of litigation in the Maryland Attorney General's Of-
fice, which involved supervising all trial and appellate civil litiga-
tion in an office of more than 200 lawyers.
She then returned to private practice for 5 years as a litigation
partner in a large Baltimore law firm, and in 1991 was appointed
to her current position as an associate judge on the Court of Spe-
cial Appeals of Maryland. The court of special appeals is our State's
intermediate appellate court. It hears all appeals, civil and crimi-
nal, from the trial courts of general jurisdiction, with a few limited
exceptions that go directly to the court of appeals.
Diana Motz is an experienced litigator who enjoys an outstand-
ing reputation in our community. She has appeared in State and
Federal courts at all levels. She has received many honors and
awards for accomplishments as a lawyer, and in 1988 was selected
by the Chief Justice of the Supreme Court to be part of a 15-mem-
ber Federal Courts Study Committee. This important committee,
made up of judges, law professors, practicing lawyers, and four
members of Congress, including Senators Heflin and Grassley from
this committee, made significant recommendations for the improve-
ment of the Federal courts system.
In addition to her very active legal career, she has been active
in a number of important community events, has volunteered her
time for important public interest legal representation of nonprofit
and citizen groups.
Mr. Chairman, let me close with this observation. Over 30 years
ago, I clerked for Judge Morris Soper on the Court of Appeals for
the Fourth Circuit, so I have a particular personal interest in this
very important appellate court. I am proud of the high quality of
judges from Maryland who have served on the fourth circuit.
Judge Motz has consistently demonstrated outstanding ability.
She has established herself as a highly respected appellate judge
925
in our State. She has the intelligence, the judicial temperament,
the experience, and the character needed to hold this important po-
sition. She will be a very considerable asset to the fourth circuit
and help this court maintain its high standard.
I congratulate Diana Motz, her husband, Fred, and her two chil-
dren, and all of her friends and family, and I commend the Presi-
dent for nominating this outstanding person to this important judi-
cial position. I am very pleased to come this afternoon and intro-
duce her to the committee and to urge you to report her to the Sen-
ate favorably.
Thank you very much.
Senator DeConcini. Senator Sarbanes, thank you for your fine
testimony and recommendation.
Judge Motz, I am advised that Senator Barbara Mikulski is also
going to be here, although because we have other Members of the
Senate and the House here, we are going to go ahead and hear
from them. We will hear from you shortly. Judge.
At this time, we will take up the introductory remarks for Judge
Robert Manley Parker, from Tyler, TX, U.S. Circuit Court. Senator
Hutchinson, would you care to lead off, and then we will hear from
the chairman of the Judiciary Committee from the House of Rep-
resentatives, Jack Brooks, who we are honored to have here today.
He has a long history and legacy in the judiciary.
Senator Hutchison.
STATEMENT OF HON. KAY BAILEY HUTCHISON, A U.S.
SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Thank you, Mr. Chairman.
I certainly do appreciate the opportunity to be here on behalf of
Judge Robert Parker for the fifth circuit, and I am very pleased to
have my distinguished colleague from the House side, the chairman
of the Judiciary Committee there. I certainly work with him on
these appointments and am pleased to be here with him.
Our distinguished nominee. Judge Parker, graduated from the
University of Texas and the University of Texas School of Law,
which makes him qualified per se.
He spent time on the Hill, Mr. Chairman. Judge Parker served
as administrative assistant to Congressman Ray Roberts, who was
a wonderful Congressman that I knew when I was an intern here
in the summertime and a great leader.
Then he moved to Longview and practiced law and was a self-
described country lawyer. You know what happens when you go
against a country lawyer in the courtroom. They always beat you,
and that is exactly the kind of reputation that Judge Parker had.
He has had a long and distinguished career as a jurist. He was
appointed to the U.S. District Court for the Eastern District of
Texas by President Carter in May 1979, and he became chief judge
of the Eastern District in February 1990.
Judge Parker was a good nomination for President Clinton to
make for the fifth circuit. I am very pleased that he has with him-^
today his family, his wife, Frieda, and his daughter. I am pleased
to be here on his behalf and I recommend him to the committee
for confirmation.
Senator DeConcini. Thank you very much. Senator Hutchinson.
926
Chairman Brooks, we will hear from you, and then we will re-
turn to Senator Barbara Mikulski for Judge Motz. You may pro-
ceed, and thank you for being with us.
STATEMENT OF HON. JACK BROOKS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Representative Brooks. Thank you very much. Senator.
I am especially honored to be here today in company with my at-
tractive junior Senator, to be here with my Senate colleagues to in-
troduce my good friend. Judge Robert Parker, nominee for the fifth
circuit of appeals.
I would like to recognize his wife, Frieda. Stand up, Frieda. I
want them to know who you are, and his daughter, Jennifer. He
has another pretty daughter, also.
I have known Judge Parker for 25 years and have always been
impressed by his hard work and dedication to the law and his local
community. He served with distinction on the U.S. District Court
for the Eastern District of Texas since 1979 and as chief judge
since 1990.
I have some statistics on his record which you might be inter-
ested in. During his first 10 years on the Federal bench, he closed
more cases than any other judge in this United States. In 1 year,
he closed off a total of 911 cases. He has certainly earned his rep-
utation as a dedicated judge, competent and efficient.
During my tenure as chairman of the House Judiciary Commit-
tee, I valued Judge Parker's straight information and wise counsel
on matters related to administration and operation of our Federal
courts. His experience as a judge and his insight on the issues fac-
ing the Federal judiciary and his outstanding work ethic are all
qualities which lead me to give him my fullest, unequivocal support
for the fifth circuit court of appeals. I am certain, after meeting
Bob Parker, you will agree.
It is a pleasure, as always, to be here today, and I want to thank
you for your usual courtesy and consideration of his nomination.
Thank you very much.
Senator DeConcini. Chairman Brooks, thank you very much,
and Senator Hutchinson, thank you.
Judge Parker, we will return to you shortly.
Senator Mikulski, do you care to make your statement on behalf
of Judge Motz?
STATEMENT OF HON. BARBARA A. MIKULSKI, A U.S. SENATOR
FROM THE STATE OF MARYLAND
Senator MiKULSKi. Thank you very much, Senator.
I apologize to Judge Motz for being late. We are debating mal-
practice reform in the health insurance reform markup.
Senator DeConcini. Do you have some questions for the judges
on that subject matter? [Laughter.!
Senator MiKULSKl. I would like to take you and her with me
right now, so that is why I am just kind of parachuting into this
hearing.
I just want to lend my enthusiastic endorsement for the nomina-
tion of Judge Diana Motz to be on the U.S. Circuit Court for the
Fourth Circuit. I know that my senior colleague. Senator Sarbanes,
927
has spoken about Ms. Motz' legal competence and her professional
experience, her degree at Vassar, and her law degree from the Uni-
versity of Virginia. She is in more "Who's Who" than have been
published in the field. Of course, now she is an associate judge on
the court of special appeals, with extensive experience both in pri-
vate practice and in supervising the 200 lawyers as the chief of liti-
gation.
I always like to look at what people do as citizen volunteers,
which I think also says something about the kind of person a judge
may be.
When one looks at the role of Judge Diana Motz, we can see that
she has worked on everything from the Union Memorial Hospital
Board to make sure health care was available, with a particular
orientation to women's health, to being on the board of the YMCA
of the greater Baltimore area, and to now being a hands-on volun-
teer at the Mount Washington Pediatric Hospital with sick babies
and toddlers.
Senator you might say, what has that got to do with being on the
court of appeals? I believe it is important to couple community
service with legal competence, extensive professional experience,
and legal scholarship. I believe we need judges who like to be in-
volved in the real world £ind to really engage with people in terms
of their day-to-day problems and the day-to-day issues that they
face.
Judges are prohibited from being community activists, but they
are not prohibited from being community volunteers. Judge Motz
is a wife, a mother, a judge, who still takes time to go to a pediatric
hospital to hold a child who would not be held any other way, to
try to bring comfort and solace to handicapped and sick children.
I think that is exactly the tjrpe of person we need on our Federal
court, combined with competence, scholarship, and ability. That is
why I am so enthusiastic in my endorsement for her.
Senator DeConcini. Thank you. Senator Mikulski. We are very
pleased to have that recommendation for the committee's consider-
ation, and I am sure that it will weigh heavily in our deliberations.
We will now proceed to the introductions for Judge Denise Page
Hood from Detroit, MI. Introducing the judge for remarks will be
Senator Levin and also Chairman Conyers is here. Chairman Con-
yers, would you like to come up? Congresswoman Collins is not
here, I understand, at this time.
Judge Hood, welcome. Senator Levin, if you would like to pro-
ceed.
STATEMENT OF HON. CARL LEVIN, A U.S. SENATOR FROM THE
STATE OF MICHIGAN
Senator Levin. Mr. Chairman, it is a real treat to be here to in-
troduce Judge Hood to the committee. She has an illustrious judi-
cial career ^ready. After graduating from Columbia Law School in
1977, she became an assistant corporation counsel in the city of De-
troit and from there was elected, first to the district court, then to
the recorder's court, which is our criminal court of jurisdiction, and
then to the circuit court. She also is just completing her term as
president of the Detroit Bar Association, which indicates what her
fellow lawyers think about her.
928
She was recommended from a long list of qualified candidates to
Senator Riegle and myself, from the Citizen Merit Selection Com-
mittee that gave us a list of possible nominees. She was on
everybody's list, and it was a real easy job, actually, for us to select
her from that list.
With all her legal qualifications, it is her personal qualifications
which are really the most outstanding. Perhaps her most unique
personal asset is her uncommon sense of common decency, her de-
termination to listen to people, to understand the issues that are
brought before her. She has a reputation in each of the courts that
she has sat on as having a heart as well as a mind and a willing-
ness to truly listen to the people who appear before her and to
those in the community from which she springs.
It is a personal treat, actually, for me to be with her and her
family here today, and she will introduce her family to you later,
because her husband now serves on the Detroit City Council. His
father served with me on the Detroit City Council. So this family
and the Levin family go back a long way together.
It is a matter of real personal pleasure and personal pride that
I join Senator Riegle in recommending her to this committee. I
would appreciate Senator Riegle's statement being made a part of
the record. He is chairing a committee hearing right now and just
was unable to be with us.
[The prepared statement of Senator Riegle follows:]
Statement of Hon. Donald W. Riegle, Jr., a U.S. Senator From the State of
Michigan
Good afternoon, Senator DeConcini. I want to thank you for allowing me to be
the first member to introduce nominee Judge Denise Page Hood this afternoon.
While I can stay only a few minutes, because I am chairing a hearing in Banking
Committee, I wanted to come by to express my unequivocal support for her, as the
President's nominee for U.S. District Judge for the Eastern District of Michigan.
Before I say anything else, I'd like to take a moment to introduce her family mem-
bers who have traveled many miles to be with her today.
Judge Hood's husband the Reverend Nicholas Hood III minister of Plymouth Unit-
ed Church of Christ and an esteemed City Councilman of the City of Detroit. Her
children Nathan 10 years old and Noah 6 years old.
Judge Hood's parents, Richard and Nancy Page. Her father and mother-in-law
Rev. Nicholas Hood Sr., who is a former member of the Detroit City Council, and
his wife Doris.
Judge Hood's parents, Richard and Nancy Page. Her father and mother-in-law
Rev. Nicholas Hood Sr., who is a former member of the Detroit City Council, and
his wife Doris.
Judge Hood's sister Teri Page. Her brother-in-law Stephen F. Hood, and cousin
Joyce Penn.
In the past two years, Denise Page Hood's life has taken some remarkable turns —
she won a seat on the Wayne County Circuit Court bench, she was named as a
nominee by President Bill Chnton for the US District Coiu-t, and she was sworn in
as the first African-American woman President in the 157-year history of the De-
troit Bar Association. And through it all she has shown the kind of character and
dignity that befits all truly exceptional jurists. When asked how she felt about being
the first African-American woman chosen to head the Detroit Bar Association,
Judge Hood replied:
"Never mind that I'm the first. What's important is that I'm not the last. I hope
that we can get to a point where we don't talk about first women, first African
American, or first anything."
And that sums up the true mark of her integrity as a person. Mr. Chairman,
today you'll hear about Judge Hood's qualification: her education at Yale University
and Columbia Law School, and her background as judge on the Recorder's Court of
Detroit and on Michigan's 36th District Court. But while all that information is im-
929
Fortant, I wanted to give you some insight into Denise Page Hood the person, and
feel that that quote says it all.
Her list of professional memberships and community organizations are too long
for me to hst here today, but it is clear that her commitment to her profession and
community distinguishes her from many of her peers. And because of that, she has
consistently been recognized as an excellent jurist with superior skills and judg-
ment.
I am pleased that the Committee is moving ahead with Judge Hood's nomination,
and I look forward to her swift consideration and confirmation. Thank you, Mr.
Chairman.
Senator Levin. We do have two Members of the House of Rep-
resentatives with us, as you mentioned, who I think might like to
add a word to my own strong recommendation for Judge Hood.
Senator DeConcini. Thank you very much, Senator Levin.
We welcome Chairman Conyers, chairman of the Government Af-
fairs Committee. Mr. Conyers, we are glad to have you here, sir.
STATEMENT OF HON. JOHN CONYERS, JR., A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF MICHIGAN
Representative Conyers. It is a pleasure, Mr. Chairman, to be
here and join in this affirmation process that has been so well initi-
ated by Senator Levin.
As we say in the Congress to shorten our remarks, I would like
to associate myself entirely with the comments that he has made
about Judge Denise Page Hood.
Let me tell you how happy I am. My congressional office sits in
the Federal Courthouse of Detroit. I follow judges with uncommon
interest, as a member of the Judiciary Committee, the first African-
American ever to serve on the House Judiciary Committee.
What we are doing in this nomination is bringing forward to the
Federal bench a very experienced jurist whose background is so
perfectly tailored for this promotion that I am very, very happy
that Don Riegle and Carl Levin saw this the same way as many
of the people who are expert on judicial matters in our region.
Let me note that she is the first African-American to come back
on the Federal Judiciary in our circuit in a dozen years, and that
is a wonderful sign. By being a woman on top of it, this gives us
the kinds of qualities, one of which I would like to make. Her con-
cern about family violence has served her well on the various com-
mittees inside the bar. She is currently a president of a bar asso-
ciation. She was of another bar association earlier. She is never
stinted in her contributions to the court and to the judicial system.
Finally, let me say that she springs from a family of gifted public
servants. We have talked about Rev. Nick Hood, the councilman,
who has now been succeeded by his son, a very talented young
man. What we see here is the continuation of the Hood tradition
in Detroit that is so absolutely celebrated by the entire community.
I might observe in closing that Nick Hood, her dad, started out
with me in public service in about the same year, and it wasn't
really that long ago. He is still very active in the community. This
continuation of the Hood tradition of giving to their community is
now taken one step higher, and we celebrate this nomination and
recommend it to you without any reservation whatsoever.
Thank you so much.
Senator DeConcini. Thank you. Chairman Conyers, very much.
We are glad to welcome Representative Barbara-Rose Collins.
930
STATEMENT OF HON. BARBARA-ROSE COLLINS, A REP-
RESENTATIVE IN CONGRESS FROM THE STATE OF MICHI-
GAN
Representative Collins. I thank you very much, Mr. Chairman.
It is a great pleasure and privilege to introduce to you and rec-
ommend without reservation Judge Denise Page Hood of Wayne
County Circuit Court.
Today, you are considering a very talented and skilled jurist for
the Eastern District of Michigan. Judge Hood's background, tem-
pered with her compassion and understanding of the conditions of
this country, makes her an excellent candidate.
Judge Hood has a stellar academic record. She received her un-
dergraduate education at Yale University and continued on at Co-
lumbia School of Law, where she received her law degree. Mrs.
Hood began her distinguished law career in her hometown of De-
troit, working in the city of Detroit's law department.
With such an outstanding record as a lawyer, it is no surprise
that the people of Detroit elected her to serve as a judge on the
36th District Court, nor is it surprising that before her term had
expired, then-Governor James Blanchard appointed her to sit on
the recorder's court. She remained on that court until she was
elected to the Wayne County Circuit Court.
I must tell you that I take special pride in the fact that Judge
Hood has had a distinguished career in my hometown, Detroit, ML
I, too, served on the Detroit City Council with her father-in-law.
Rev. Nicholas Hood.
She has spent the better part of her life being a positive example
to young women of color in the city of Detroit. Using her gifted
mind, honed by relentless hard work, she has used the law always
carefully, without bringing a personal bias to the bench. I believe
she will continue that tradition on the Federal bench and reach de-
cisions fairly and knowledgeably. A woman with this integrity and
independence is exactly what is needed on the Federal bench.
Judge Hood has the courage, the leadership ability, and the for-
titude to be an outstanding Federal judge. There is no doubt that
she has distinguished herself as a lawyer, judge, and an outstand-
ing citizen. I enthusiastically recommend her to you.
Senator DeConcinl Representative Collins, thank you very
much. Thank you for your endorsements and introductory remarks.
Senator Levin. Mr. Chairman, if I can give assurance, now that
Senator Simpson is here, Senator Simpson is a great fan of the De-
troit Tigers and I want to assure him that Judge Hood qualifies in
that regard as well. [Laughter.]
Senator DeConcini. The judge will be questioned very heavily on
that, I am sure. [Laughter.]
Senator SiMPSON. Thank you very much.
Senator DeConcini. We will now proceed to the nomination of
Paul Friedman to be U.S. District Judge for the District of Colum-
bia and Ricardo Urbina, U.S. District Judge for the District of Co-
lumbia. We are very pleased to welcome Representative Eleanor
Holmes Norton for introductory remarks. Please be seated, gentle-
men.
Congress woman, please proceed. We welcome you here, and are
sorry to keep you waiting.
931
STATEMENT OF HON. ELEANOR HOLMES NORTON, A
DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA
Delegate Norton. Thank you very much, Mr. Chairman.
This is a special set of nominees to the residents of the District
of Columbia. In the 200-year history of the District of Columbia,
these are the first judges to be chosen by the same process that
Presidents allow judges to be chosen by the States. They were cho-
sen by a judicial nominating committee appointed by me from a list
submitted to me and then to President Clinton. They are from
among a group of unusually well-qualified judges whose names
were submitted.
Paul Friedman, whose wife, Elizabeth is here — and I am going
to ask Elizabeth Friedman if she would stand — would appear to
have been preparing for this nomination all his professional life. He
clerked on the court to which he is seeking appointment, the Dis-
trict Court for the District of Columbia. He then clerked on the
U.S. Court of Appeals for the District of Columbia.
He continued to litigate in the Federal sector and went on to be-
come a litigator in private practice. He has been an assistant U.S.
attorney for the District of Columbia. He has been an assistant to
the Solicitor General of the United States. Most recently, he was
associate independent counsel to the Iran-Contra investigation.
Paul Friedman has already had an important impact on the
court on which he would serve. He is chair of the U.S. district
court's Civil Justice Reform Act Advisory Committee, which has is-
sued a groundbreaking report about the U.S. district court here.
Paul Friedman is a past president of the District of Columbia
Bar, the third-largest State bar in the country. Paul Friedman has
been a chair of the District of Columbia Judicial Nominating Com-
mission, which recommends judges for appointment to the local
District of Columbia courts by the President.
Mr. Friedman's career has been rooted deeply in the most distin-
guished part of the profession, locally and nationally. He is the
State delegate from the District of Columbia to the House of Dele-
gates of the American Bar Association. He is a former chair of the
Federal Practice Committee Litigation Section. He is a member of
the American College of Trial Lawyers. He has been on the faculty
of the Federal Judicial Seminar for Newly-Appointed Federal Ap-
pellate Judges.
He is now managing partner at the District of Columbia office of
White & Case, where he has specialized in white-collar criminal de-
fense.
Much of Paul Friedman's work has been groundbreaking. In the
1980's, he led an effort for the appointment of women, minorities,
and local lawyers to the Federal courts here. He established the
very successful superior court settlement week here, which has im-
proved the efficiency of our superior court markedly. He has led
work in the bar for the homeless and the poor. He is a District of
Columbia resident.
Paul's peers would want me to tell this committee that Paul
Friedman is not only one of our most distinguished lawyers, he is
a really nice guy.
Next, I would like to introduce one of the District's most distin-
guished and experienced judges, District of Columbia Superior
932
Court Judge Ricardo Urbina was appointed in 1980 and has had
the deep, tough experience that more than prepares him for the
district court seat here.
He has been selected to handle large and complex cases. He has
presided over a special calendar, consisting of the toughest cases in
his court — first-degree murder, rape, and child molestation.
He has been a presiding — and a particularly outstanding presid-
ing— -judge of the family division of his court. He chaired the com-
mittee of judges that drafted the child support guidelines for that
court, and those guidelines were later adopted by our own city
council and made into law.
Before coming to the bench. Judge Urbina worked as a District
public defender in the District of Columbia public defender service,
in commercial private practice, and as a professor of law specializ-
ing in criminal law and procedure at Howard University.
Finally, I must tell you that for those of us who live in the Dis-
trict, Judge Urbina has a very special leadership role. He has
paved the way for Hispanics in our city. He was the first Hispanic
to sit on the superior court. He will be the first to sit on the district
court.
He has been named "Washingtonian of the Year". He has re-
ceived the Simon Bolivar Award for his work on behalf of Latin
American people. He was twice recognized by HHS, the Depart-
ment of Health and Human Services, for his outstanding leader-
ship in preventing child abuse and neglect. Judge Urbina is also a
District resident.
If I may say so, Mr. Chairman, he has the talent for which so
many lawyers long. He has been a three-time all-American NCAA
champion.
Thank you, Mr. Chairman. [Laughter.]
Senator DeConcini. Thank you very much, Representative Nor-
ton.
We will now go to Richard Paez of Los Angeles, CA, U.S. district
judge for the Central District. Senator Boxer is here. Senator
Boxer, we are sorry to keep you waiting. We are very pleased to
have you here today.
STATEMENT OF HON. BARBARA BOXER, A U.S. SENATOR FROM
THE STATE OF CALIFORNIA
Senator BoxER. Thank you so very much, Mr. Chairman and
Senator Simpson.
It is such a pleasure for me to introduce you to Judge Richard
Paez and to the members of his family, his wife, Diane, who is
holding his son, David, who is 3, and his daughter, Lisa, who is
right here taking photographs to get the moment, his mother,
Paula, his sister. Daphne, and her husband, Darrell. This is a very
big day.
I want to go quickly, because I know you have a very big agenda.
I am honored to have this opportunity for you to meet Judge
Paez. He has a distinguished legal career in California. He received
his law degree from Boalt Hall, the law school of the University of
California at Berkeley.
He worked as a staff attorney for California Rural Legal Assist-
ance and the Western Center on Law and Poverty. He went on to
933
serve as the director of litigation and senior counsel for the Legal
Aid Foundation of Los Angeles, and later became the acting execu-
tive director.
During his 9 years as an attorney, Judge Paez has litigated and
supervised numerous complex cases in State and Federal courts at
the trial and appellate court levels.
In 1981, Judge Paez was appointed to the Los Angeles Municipal
Court, which is one of the largest metropolitan courts in the coun-
try. He was elected presiding judge in 1988 and has been the su-
pervising judge of the county courthouse since 1986.
He was appointed by California Supreme Court Chief Justice
Malcolm Lucas to the prestigious California Judicial Council,
where he is currently serving his second term.
Judge Paez is well respected by every segment of the community.
In addition to his duties on the bench, he has taught numerous
civil procedure courses to other judges throughout the State. He
has contributed scores of hours to reforming judicial administration
in the State's courts.
As one indication of his broad support, I would ask unanimous
consent that you include in the record a Los Angeles Times edi-
torial endorsing his nomination.
Senator DeConcini. So ordered.
[The Los Angeles Times editorial is retained in committee files.]
Senator BoxER. Mr. Chairman, thank you.
I want to point out that when you confirm Judge Paez, as I am
very confident that you will, you will be confirming the very first
Mexican-American ever appointed to the Federal bench from the
Central District of California.
I am, again, so confident that you will agree with me that Judge
Paez is an outstanding nominee. He possesses exceptional integ-
rity, skill, and experience which qualifies him to serve with distinc-
tion on the Federal bench. I urge your affirmative votes for Judge
Paez's confirmation.
On behalf of his family and everyone else, I thank you.
Senator DeConcini. Thank you, Senator Boxer, very much. Your
recommendation will weigh heavily with the committee, I can as-
sure you. Thank you.
Senator Boxer. Thank you very much, Senator.
Senator DeConcini. Thank you. Judge Paez.
We now will go to William F. Downes from Casper, WY, U.S. dis-
trict judge for the District of Wyoming. I yield to Senator Simpson
from that great State.
STATEMENT OF THE HON. ALAN K SIMPSON, A U.S. SENATOR
FROM THE STATE OF WYOMING
Senator Simpson. First, Mr. Chairman, I want to thank both Bill
and his wife for coming forward. Thank you very much for your
courtesy and cooperation in this agenda today. I know it makes for
a rather unusually long hearing, and I thank you very much for
that.
Mr. Chairman, I am very pleased to be serving as the ranking
member at hearing, and I am more than especially pleased to wel-
come Bill Downes, who is the administration's nominee to fill the
934
Federal district court vacancy in Casper, WY, in the District of Wy-
oming.
I extend my thanks to our able chairman, Senator Joe Biden, and
our ranking member, Senator Hatch, these two friends, for making
it possible for this agenda inclusion today.
For the benefit of the chairman and Congressman Bob Wise, who
joins us here, who has known Bill for many years, I say that I do
know this man personally. He is very able, very fair, very qualified.
I am also very pleased that his wife, Cathy, who my wife, Ann, and
I have known for many years, is present today. She is a sensitive
and caring woman, a friend to her friends and a wonderful help-
mate at his side.
Bill Downes is one fine and skilled attorney, and he has a splen-
did reputation in Wyoming, well deserved. He is a managing part-
ner in a highly regarded law firm in Casper, Brown & Drew; a very
fine husband, a proud father. He is a well-experienced litigator,
principally in the areas of civil litigation. He is held in singularly
high regard by members of the Wyoming bar. I am informed that
he has received the ABA's well-qualified rating. I would question
any lesser designation and have before, from time to time, with re-
gard to the ABA, but enough of that.
I have known this man and his wife, Cathy. Wyoming will be
very well served by having Bill as a Federal district judge.
If confirmed, and I am most certain he will be, Judge Downes
will preside in Casper. That is especially important to our large
State geographically, since litigants have had to travel great dis-
tances to appear in our Federal court. For many years, attorneys,
litigants, and citizens in Wyoming have been asking for help and
demanding to have a Federal judge permanently assigned to this
central Wyoming location, where, thanks to the Judiciary Commit-
tee and Environment and Public Works, we have recently remod-
eled facilities standing ready to be put to effective, regular use.
His resume is impressive, captain in the Marine Corps. Even be-
yond his military service, he was in the trenches with the people
whose disputes he will soon be presiding over. He has labored in
the vineyards.
In a sense, he has been both a white-collar executive and a blue-
collar laborer. He is a man clearly in touch with everyday citizens
and all of the problems and anguish and joys that fill their lives.
Bill Downes will be a judge that the people of Wyoming will be
very proud of, that they can relate to, can trust. In my view, that
is certainly one of the most important, yet most unscathed, quali-
fications for a trial judge. He will be a good one, and we can count
on it.
His only defect, of course, is that he is a Democrat. [Laughter.]
Senator DeConcini. You don't hold that against him?
Senator SIMPSON. No, we must go forward, even under those cir-
cumstances.
Now, I would yield, so Bob Wise, a friend and Congressman from
West Virginia, may have commentary.
Senator DeConcini. Representative Wise.
935
STATEMENT OF HON. ROBERT E. WISE, JR., A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF WEST VIRGINIA
Representative WISE. Thank you very much, Senator Simpson
and Senator DeConcini, for giving me the privilege of joining you
here.
I have known Bill, I guess, probably even longer than Cathy. I
have known Bill since law school, when we ran into each other the
first day at law school and decided that we had something in com-
mon, which was that we both had some rent money and we needed
an apartment. We struck out from there and were roommates for
well over a year. We have stayed in close contact for all these many
years since then.
I have the highest confidence in him. We have gone, obviously,
different directions. I guess we both stayed in the West. He went
to Wyoming; I went to West Virginia. [Laughter.]
But we stayed in contact all these many years, both through vis-
its and through frequent telephone conversations.
I have known Bill, both in law school and as a practicing attor-
ney, to have what I would consider to be the judicial temperament.
We didn't always agree on a lot of things. We came from different
ways. But what impressed me about Bill was his willingness to lis-
ten, to absorb, to be fair, and to hear everybody out, and that is
what I think we are asking for in a Federal judge.
I know that he has a deep adherence to the law and he will en-
force the law as the law is written.
I join with Senator Simpson in saying I don't know any person
that could sit on the bench that can relate to every citizen better
than Bill can. I have seen him in a whole wide range of different
settings, able to talk to a diversity of people and to understand and
to feel, and that, I think, is one of the most important things you
can bring to the bench.
Senator since I do know Bill longer, if I have one reservation
about Bill, it is that he tried to play rugby about 3 years longer
than any sensible human being should in law school, but even with
that, he brought to it the traditional Bill Downes flair, which was
he tried hard and went out and worked hard.
With that, I would thank the Chair for letting me offer this testi-
mony and give my highest endorsement, also, to Bill Downes for
Federal judge.
Senator DeConcini. Thank you, Representative Wise.
Mr. Downes, we will return to you shortly.
Senator DeConcini. We now will ask Judge Motz and Judge
Parker to return, please, if they would. Will you both please remain
standing?
Do you swear the testimony you are about to give the committee
is the truth, the whole truth, and nothing but the truth, so help
you God?
Judge MoTZ. I do.
Judge Parker. I do.
Senator DeConcini. Very good.
Judge Motz, we will start with you for any opening statement
you care to make or any introductions you care to make.
936
TESTIMONY OF DIANA G. MOTZ, BALTIMORE, MD, TO BE U.S.
CIRCUIT JUDGE FOR THE FOURTH CIRCUIT
Judge MOTZ. I wonder if I could introduce my family, Senator
DeConcini.
Senator DeConcini. Please.
Judge MOTZ. I am here today with my husband, Fred Motz.
Senator DeConcini. Judge, we are very pleased to have you.
Judge MOTZ. And our daughter, Catherine, our son, Daniel, and
my parents, Jane and Daniel Gribbon, who I asked to stand, but
apparently they are too shy.
Senator DeConcini. We thank them for being here. I know it is
a very proud moment.
Judge Motz. I am also accompanied with veritably a busload of
friends from Baltimore. It is not very far, but it is an hour away,
and I am most appreciative of their support.
Senator DeConcini. We thank them.
Judge Motz. I am just absolutely delighted and honored to be
here. Senator. I have no opening statement.
Senator DeConcini. Thank you, Judge.
Judge Parker, do you have any opening statement or any intro-
ductions?
TESTIMONY OF ROBERT MANLEY PARKER, TYLER, TX, TO BE
U.S. CIRCUIT JUDGE FOR THE FIFTH CIRCUIT
Judge Parker. Mr. Chairman, I have no opening statement.
With some trepidation, I point out to the Chair that there is a
typographical error about my middle name. It should be "Manley"
instead of "Henry." I only mention it to make sure you consider the
right person. [Laughter.]
Senator DeConcini. I don't know, with Mr. Brooks, maybe he is
trying to get two judges on there, I don't know. [Laughter.]
QUESTIONING BY SENATOR DE CONCINI
Senator DeConcini. Thank you very much.
Judge Motz, let me pursue some questions, if I can. One issue
that is always of great concern to me is judicial temperament. You
have been on the bench and you have demonstrated your acumen
and your understanding of judicial temperament, I think, but I
can't help but ask the question, and I will probably ask it to every
nominee here, what do you do as a judge, particularly now as a
Federal judge, if confirmed for a lifetime appointment, to maintain
your level of balance so that there is not a feeling, either within
yourself or expressed on the bench, that you are above those who
appear before you?
Judge Motz. Mr. Chairman, I think you are absolutely right.
Maybe it is as important as anything else. We talk about learning
and we talk about experience, but judicial temperament is perhaps
as important as any other quality for a judge.
What I have tried to do and what I hope I have done is to, of
course, treat people fairly and courteously, but I think at least an
equal dimension of a fair and good demeanor is to be prepared and
to be intelligently prepared so that you can ask intelligent ques-
tions.
937
I was for a long time, as perhaps you were, Senator, a trial law-
yer and argued a number of cases in the appellate courts of our
State. Some of the most difficult appellate arguments were those
in which the judges didn't give me any indication of where they
were.
So I made a promise to myself when I took the job I have now
that when I was on the court, that if I did have a difficulty with
an advocate's position, I would ask them a question, not a berating
question, but that I would try to let them know what my problem
was so that they could make their case.
I think that is a fair part of judicial temperament.
Senator DeConcini. What do you do now as judge, and I pre-
sume you will do the same thing as a circuit judge for the fourth
circuit you do now, when you have an attorney who is overzealous
or rambunctious or nonjudicial within the court? How do you ap-
proach that lawyer in front of his client and in front of the court?
Judge MOTZ. I try to get lawyers to answer my questions, and
ask them to do that. I am not a believer in berating people in pub-
lic, and I don't do it.
The problems with lawyers acting out, if you will, acting inappro-
priately, I think are much less in the Federal appellate courts and
in the State appellate courts. You are much more likely to have a
lawyer making a position for his client, I think, in a trial court, be-
cause the client is much more likely to be there, so that I haven't
really had an occasion where someone has acted improperly in
front of me.
Senator DeConcini. Do you have any opinion, Judge Motz, on a
process to monitor Federal judges' conduct and a procedure to be
set up to handle complaints from the public or the bar toward Fed-
eral judges, such as a judicial tenure court?
Judge MoTZ. This is, of course, why the appointment process is
so important, and I don't think I have to emphasize that to you or
Senator Simpson. I think that once someone becomes a Federal
judge, that this is a trust and it is Hfetime tenure, and that is why
you want to get the very best people there to begin with. It is dif-
ficult for the public to complain.
I would be in favor for making that as open as possible, be-
cause
Senator DeConcini. Do you think that there should be some
process for
Judge Motz. I do. Yes, I do, Mr. Chairman.
Senator DeConcini. For at least registering complaints, valid or
not valid?
Judge Motz. Yes, sir.
Senator DeConcini. Thank you.
Judge Parker, the same to you, judicial temperament. I don't
know your background on judicial temperament. I do know, how-
ever, your background on expediting and innovative procedures in
your court, not only from your record, but also from Judge Bilbey
in the Tucson District Court who has attempted to work on some
comparable approaches. However, he has not received the nick-
name "The Rocket Docket," as I understand that you have, and I
compliment you for innovative approaches that demonstrate that
judges can really be involved in expediting and perfecting the proc-
938
ess, and not just looking to Congress for more judges and more
courtrooms.
But referring to judicial temperament, how do you handle prob-
lem lawyers, or how do you handle your own ego, your own self-
esteem, once you are on the court and know that almost nothing
can extract you from that court? How do you handle that, sir?
Judge Parker. Mr. Chairman, my definition of judicial tempera-
ment includes simple courtesy, preparation, and the ability to lis-
ten to lawyers. I have never had a lawyer misbehave in my court
in 15 years, so it has not been a problem. I would hope that the
atmosphere created has contributed to their demeanor.
Senator DeConcini. Let me give you a hypothetical. What if one
does misbehave? What is the action you would take immediately as
a judge?
Judge Parker. I would hope to reason with the lawyer, and am
confident that that would be effective.
Senator DeConcini. Thank you.
Judge Parker, to get on the record regarding some club member-
ships that you belong to, I understand you were a member of the
Pinecrest Country Club of Longview, TX, from 1984 through 1987,
and a nonresident member from 1989 through 1992.
The Judiciary Committee passed a resolution expressing the
committee's sense that it is inappropriate for judicial nominees to
be members of clubs where business is conducted and those clubs
discriminate on the basis of race, sex, or religion in their member-
ship policies.
What is your view of the Judiciary Committee's resolution, and
for the record, I understand you do not belong to those clubs now,
is that correct?
Judge Parker. That is correct. Senator.
I completely agree with the resolution. I rejoined Pinecrest in
1984, having been a member some years before. I rejoined after
satisfying myself that there was an attitude change at the club. I
served 1 year on the board. I initiated a discussion on the board
relative to minority membership. I was pleased to see that there
was unanimous support for minority members in the event an ap-
plication was received.
Senator DeConcini. Did the club change its rules for admission?
Judge Parker. The rules explicitly were race neutral all along.
Senator DeConcini. There just were no minorities?
Judge Parker. That is correct.
Senator DeConcini. Have they accepted any minorities, to your
knowledge?
Judge Parker. Senator, I don't have up-to-date information. I
have observed minorities in the eating facilities, on the golf course,
and the few times I have been a guest in recent years, but I am
not advised that there are minority members, but I don't know for
sure.
Senator DeConcini. Thank you. Judge Parker. I have no further
questions.
Senator Simpson.
questioning by senator SIMPSON
Senator SiMPSON. Thank you, Mr. Chairman and judges.
939
Let me ask, Judge Motz, as a court of appeals judge now, a new
role, in a sense, at least you have been, of course, an associate
judge on the Maryland Court of Special Appeals, as a court of ap-
peals judge, you would be bound to follow precedent laid down by
the Supreme Court and by your own court, and you will, of course,
be faced with cases of first impression.
What principles will guide you, or what methods will you employ
in deciding cases of first impression?
Judge Motz. Senator, I think that cases of first impression are
sometimes the most difficult cases to decide, because as judges,
what we do is usually look for precedent, and there wouldn't be
precedent there.
I would think that I would do what I do now when I face a case
of first impression, which is to look for an analogous case that
would be in the circuit or in the Supreme Court. For example, if
you had a question about what kind of due process was due and
what kind of hearing was due and you didn't have the precise fact
situation decided in the fourth circuit, I would look to see what had
been appropriate in an analogous situation, or I would look at out-
of-circuit law, which might have decided a very similar situation in
another circuit, for example, the ninth circuit or the tenth circuit.
Senator Simpson. And then, of course, draw on your own per-
sonal experiences in life and your training?
Judge Motz. Absolutely. You look at the library and you see all
of these books and you think that every single issue must have
been decided somewhere by some court, and, of course, that is not
true. There are inevitably cases that have not been decided any-
where by any court. You go to the restatement, the American Law
Institute's restatement that they put out. You go to treatises, see
what the McCormick or something like that has to say about it.
You go to law review articles. But ultimately, it is sort of what
your judgment is, what your experience is, having read all of these
things, of course.
Senator Simpson. We always ask here, regardless of which party
is involved in the majority or the minority, these issues of judicial
activism are always, I think, there. We try to guard against that
from both sides of the aisle, as to placing people on the bench who
are "judicial activists," so those questions are often posed.
I have reviewed your decisions in the past. I just had one ques-
tion about one, and I would ask you, this was the case of Brown
V. Ashton. You ruled basically that an ordinance imposing a curfew
on juveniles infringed the "fundamental rights of those juveniles,"
because of the difference of adults and juveniles. You ruled that all
the defendants were immune.
How would you respond to the thought that that might have
been activist on your part, to reach out to decide a question that
was ultimately unnecessary in the resolution of the case? That
would be the only one I would ask you, because you were speaking
of the vulnerability of children and their inability to make critical
decisions and the importance of parental role, but curfews are usu-
ally imposed because the parental role has totally failed. In fact,
it is a very dramatic thing. That ordinance might rather support
rather than subvert the parental role and put some teeth in a par-
ent's insistence of curfew.
940
How do you respond to that, in your own thoughts for me,
please?
Judge MOTZ. Senator, I think you have accurately characterized
the case. I am very impressed, frankly, with how much of the case
you seem to really have mastered. It took me quite a while.
Senator Simpson. Don't believe it.
Judge MOTZ. I guess the issue there, I thought, was a difficult
one.
Senator Simpson. Sure.
Judge MOTZ. The ordinance there, if you will remember, imposed
a curfew on all those under the age of 18, so it seemed to me it
wasn't just young children, 12-year-olds, it was fairly — and, in fact,
the plaintiffs that brought the case were over 16 years of age.
The ordinance had been on the books — this was the city of Fred-
erick up here, about an hour away from us — had been on the books
of the city of Frederick for 12 years at the time it was enforced.
It had never been enforced before. All of a sudden, when a minority
organization got together and had some dances downtown and
there were some teenagers around at night, there was a decision
to enforce the ordinance.
The ordinance was enforced, as I say, for the first time after not
having been enforced for 12 years, and it seemed to me, when you
looked at the cases around the country, and as you will remember
from that case, I didn't decide it in a vacuum. I tried to canvass
the waterfront, and there were cases from all over the country.
Most of those cases said that when you had an ordinance of this
sort, because it wasn't very specifically grounded for a specific situ-
ation or a very young group of children, you had that kind of ordi-
nance, you were talking about fundamental rights. As you know.
Senator, once you start talking about fundamental rights, when
you put restrictions on those rights, you have a very difficult bur-
den in justifying them.
I think I made clear in the case, and indeed, used an example
of another Maryland case, if you had a different kind of curfew, for
example, just a curfew over Labor Day weekend in Ocean City, Me-
morial Day weekend, a beach weekend where you had made a
record that there might indeed be problems and you were not using
this as some sort of subterfuge, that the ordinance might be fairly
constitutiongJ.
I hope that answers your question. I know it is a long answer.
Senator Simpson. No, it helps. No, that helps, indeed, because it
gives me the knowledge that you will pursue those things on a
case-by-case basis with common sense.
Judge MOTZ. Yes, sir.
Senator SiMPSON. I believe that, from everything I know. I just
wanted to ask you about that because I was an old city attorney.
I remember those curfew cases.
Judge MoTZ. I thought it was a difficult case, I did. I have to tell
you that the court of appeals has been considering it for 2 years,
so I am interested in hearing what they will say. We have a certio-
rari court above me.
Senator Simpson. Thank you very much.
Judge MOTZ. Thank you, sir.
^
941
Senator Simpson. Judge Parker, I was reviewing your materials
prior to the hearing, and in your question in response to the com-
mittee questionnaire, the eternal question on judicial activism,
your response gave me recollection of many Supreme Court nomi-
nees' response to questions on such issues as constitutional right
to privacy, on matters of reproductive choice, and other issues
which might require a nominee to disclose how he or she would de-
cide on a particular issue.
I am pro-choice in my own personal life about the issue of repro-
ductive rights and abortion, which, of course, with the nomination
coming before us soon, I notice that groups on both sides appar-
ently are going to exhaust themselves asking questions on that. I
hope they do, on both sides, exhaust themselves and fall flat on
their faces somewhere along the line so that we don't have to just
spend days on that issue, which is such a deeply personal decision.
But nevertheless, I ask you, it seemed to me it was not quite a
direct response on the issue of judicial activism. I think it is essen-
tial to the rule of law that judges not act politically.
Do we have your commitment that you will be deciding cases
based on the law and the facts and not let political considerations
influence your judgment?
Judge Parker. Absolutely.
Senator SiMPSON. Without any qualification?
Judge Parker. None.
Senator Simpson. As I say, that came only because I reviewed
your answer about your record, containing opinions I am sure some
would consider "activist" and opinions that some would criticize as
exercising too much "judicial restraint." You found that in public
life, which is what you are involved in, you have been accused of
everything by now.
Judge Parker. My definition of activism, Senator, involves one
permitting political or personal agendas to creep into the decision-
making process. I think it has no role in the decisionmaking proc-
ess.
Senator Simpson. And personal bias?
Judge Parker. Absolutely.
Senator SiMPSON. Thank you very much.
I thank you, Mr. Chairman.
Senator DeConcini. Thank you.
Judge Motz, what do you do when your husband's opinion is on
appeal?
Judge Motz. My husband is usually right, Senator. [Laughter.]
He doesn't get appeal.
Senator DeConcini. I am not going to ask any more questions
after that one. [Laughter.]
Senator DeConcini. Thank you.
Judge Motz. I would, of course, recuse myself.
Senator DeConcini. That is what I wanted for the record.
Judge Motz. I won't be hearing any of his appeals, no sir.
Senator DeConcini. Well, we know who wears the pants in that
house now. [Laughter.]
Thank you very much, judge.
Judge Motz. Thank you.
Senator DeConcini. Thank you, judge.
942
Judge Parker. I thank the Chair and Senator Simpson.
Judge MOTZ. I do, too. Thank you both.
Senator DeConcini. We will now ask for Mr. Downes, Mr. Fried-
man, Ms. Hood, Judge Paez, and Judge Urbina to all come forward,
please. If you would remain standing and raise your right hand.
Do you solemnly swear the testimony you are about to give the
committee is the truth, the whole truth, and nothing but the truth,
so help you, God?
Mr. Downes. I do.
Mr. Friedman. I do.
Judge Hood. I do.
Judge Paez. I do.
Judge Urbina. I do.
questioning by senator de concini
Senator DeConcini. Please be seated.
I will pose questions here to all of you and start with Judge
Urbina, but it will be the same question for all of you.
If confirmed to the district court, you very well may be faced
with applying a court of appeals or a Supreme Court decision that
has already been decided and affirmed, and it may be different
than your personal view or perhaps your interpretation of what the
law might be interpreted, if you were sitting on the court of ap-
peals or the Supreme Court.
Would you personally have any difficulties, if you would each re-
spond to this, in appljdng precedent established by circuit courts or
the Supreme Court of the United States, even though the case is
one with which you might personsilly disagree?
Judge Urbina.
Judge Urbina. Mr. Chairman, the answer to the question is no,
and the reason for the answer is that it has always been my firm
belief that the law must maintain continuity, predictability, and
stability, and the only way to achieve those goals in the application
of the law is to apply precedent.
Senator DeConcini. Thank you.
Judge Paez.
Judge Paez. Senator DeConcini, if I am fortunate enough to be
confirmed, I can assure you that I will have no difficulty in follow-
ing established precedent in my circuit.
Senator DeConcini. Judge Hood.
Judge Hood. Mr. Chairman, I would also have no problem fol-
lowing the precedent of my circuit and that of the Supreme Court.
Senator DeConcini. Mr. Friedman.
Mr. Friedman. Mr. Chairman, the judge I clerked for, R.B. Rob-
inson, once told me that the district court judge has a lot less
Cower than people think and the main reason is that he is bound
y what Congress writes and he is bound by what the circuit has
said and what the Supreme Court has said. I will have no problem
applying the law.
Senator DeConcini. Mr. Downes.
Mr. Downes. Mr. Chairman, the obligation of every Federal dis-
trict judge is to follow judicial precedent, and I cannot conceive of
a situation in which I would not do that, sir.
Senator DeConcini. Thank you.
943
I apologize for not letting each of you make an opening state-
ment, and make any introductions. I will go back to that right now.
Judge Urbina, do you have any statement you care to make or
any introductions you care to make?
TESTIMONY OF RICARDO M. URBINA, WASHINGTON, DC, TO BE
U.S. DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA
Judge Urbina. I have no opening statement, but I would like to
acknowledge the presence of a number of people who have come to
support me and have been supporting me.
Senator DeConcini. Please do so.
Judge Urbina. Of course, first is my wife, Coreen Urbina, if she
would stand, who is present, and also my son, who is in the back
of the room, Ian Urbina. My mother is sitting beside him. She is
in a wheelchair, but at 84, she gets around and is still the matri-
arch of the family. My good friend, Michael Gardner, is standing
right behind my mother.
My law clerks, Ms. Von-Pervieux and Mr. Nuterangelo, are also
standing in the back of the room. Also present here is Prof. Warner
Lawson, a colleague of mine from my time on the Howard Univer-
sity Law School faculty. Chief Judge Eugene Hamilton, I believe,
is here, the chief judge of my court, and the executive officer, Mr.
Ulysses Hammond.
Also present is Judge Rufus King, a judge of my court, and also
present is my trusty and valued courtroom clerk, Ms. Melody
Hemby, who has taken time out of her day to come here and ac-
company me as well.
I am sure I am missing people who have come here to assist me
in my hour of need, but those are the ones I can see.
Senator DeConcini. All who support Judge Urbina, would you
like to stand up, please? [Laughter.]
We welcome you here, and I know it is a very proud moment for
all of you, particularly family.
Judge Urbina. May I add one more name? I see that Maria
Hollerin Rivera, former president of the Hispanic Bar Association,
llJlS 3.1sO COTIIG
Senator DeConcini. We welcome all of you and we thank you for
being here.
Judge Paez.
TESTIMONY OF RICHARD A. PAEZ, LOS ANGELES, CA, TO BE
U.S. DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALI-
FORNIA
Judge Paez. Thank you, Senator DeConcini.
I know Senator Boxer already acknowledged my family, but I
would like to do it again. My wife, Diane Erickson, is here with me
today. She has been my confidant and companion for the past 21
years. My daughter, Lisa, who was up here earlier taking photo-
graphs, is with us. She is in the fourth grade. My son, David, who
is checking in and out with us throughout this proceeding, is with
my wife. ,;r /. v
My mother, Paula Paez, was able to be here today. My father is
here with me in spirit. He was unable to be here because of some
health problems, but his good words and advice are with me today.
944
My sister, Daphne Gieseking, is here from Los Angeles, and her
husband and my brother-in-law, Darrell Gieseking, is also here.
I also have a very good friend who is here, Mark Stienberg, and
he was assisting us by letting David sleep on his shoulder just a
few minutes ago.
Thank you.
Senator DeConcini. Thank you. We welcome all of you here. We
know it is a very proud moment.
Judge Hood.
TESTIMONY OF DENISE PAGE HOOD, DETROIT, MI, TO BE U.S.
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN
Judge Hood. Mr. Chairman, I thank you.
I would like to have my family stand. They are Rev. Nicholas
Hood HI — well, he can't, because my son, Noah, who is 7, is asleep
on his lap; my son, Nathan Hood; my father and mother, Richard
and Nancy Page from Columbus, OH; my sister, Teri Page, who is
with them; my father-in-law and mother-in-law. Rev. Nicholas
Hood, Sr., and his wife, Doris; his son, Stephen Hood; her son, Vic-
tor Chenault; my cousin, Joyce Penn, who came from Toronto
where she is in a seminar.
I also have a lot of my family and my church family and friend
family are here, and I am going to say their names real fast: David
Grummett and his sister, Dorothy Grummett; Annett Sewell; Terri
Conerway, my godson Henry Conerway, Garnet Conerway
Senator DeConcini. Please stand up.
Judge Hood. They are not standing up, are they? Lullamae Lee;
Charlene Revels is my secretary; Leroy Walton, who drove our bus
from our church; Denise Goodrich and Harold Sullinger, who are
my friends from junior high; Shirley Robinson Hall, who is from
Washington; Bemice Powell Jackson, who is the executive director
of the United Church of Christ Commission for Racial Justice; Eu-
gene Chaires and his daughter and son-in-law, Bennell and
Charles Mosby; Golden Britt; Joy Crawford; Gina Orton; Cris
Dinwiddle; Doreen Mitchum; my cousin, Haron Battle; Rubin
Tinday from the United Church of Christ; Shirley Stone, Emanuel
Blow; Elizabeth Glover; William Robertson; June and Betty
Jeffries, who were once of Detroit but are now of Washington; Cur-
tis Scott, and I think that is all, although I would also like to claim
Ulysses Hammond, who used to be in the State of Michigan.
I appreciate you indulging me.
Senator DeConcini. Judge Hood, thank you. Do you run for of-
fice? [Laughter.]
Judge Hood. Hopefully, if I am fortunate to be confirmed, I won't
have to do that again.
Senator DeConcini. We welcome all your friends and relatives
here.
Mr. Friedman.
TESTIMONY OF PAUL L. FRIEDMAN, WASHINGTON, DC, TO BE
U.S. DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA
Mr. Friedman. My list is a little shorter, Mr. Chairman. Dele-
gate Norton has already introduced my wife and my very best
945
friend, Liz. It is a happy day for us today because in addition to
being here, it is our 19th wedding anniversary.
Senator DeConcini. Congratulations.
Mr. Friedman. My secretary and strong right arm, Marissa
Ahari, is here. My cousin's daughter, who has always been like a
niece to us, Lisa Fine, is here. She is a legal assistant in a Wash-
ington law firm, and her father was best man at that wedding 19
years ago.
My very good friend, Rick Cys, he and I were sworn in together
to the U.S. attorney's office on the very same day 24 years ago. His
wife, Karen Cys, who went to college with Liz and who was maid
of honor 19 years ago today, is here.
Several of my colleagues from White & Case, my partner, Caro-
lyn Lamm; my partner. Jack McAvoy; my colleague, Anne Smith,
who has worked with me on so many cases; former colleague Jim
Hackney may be here. The president-elect of our bar, Pauline
Schneider, said she would try to be here. Myles Lynk, who worked
with me on the Civil Justice Reform Act, said he would try to be
here. My friend, chief judge Eugene Hamilton, is here, and my
friend Frank Nebokur, the Chief Judge of the Court of Veterans
Appeals, was here a little earlier.
Thank you.
Senator DeConcini. Thank you, Mr. Friedman.
Mr. Downes.
TESTIMONY OF WILLIAM F. DOWNES, CASPER, WY, TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF WYOMING
Mr. Downes. Mr. Chairman, thank you. I only have a few people
here, but they are very dear to me. My wife, Cathy, who was intro-
duced to you earlier. My daughters, Jill and Dawn, are 21 years
old. They are in Wyoming and couldn't come here today. My son,
Ryan, is running in a track meet today in Casper, and that took
precedence, Mr. Chairman, in his mind, at least.
I would like to introduce also my brother. Bob. Bob is a retired
Army lieutenant colonel, and until last year was on the staff of the
Chairman of the Joint Chiefs and served with distinction there and
with the Army for 23 years. Also, a good friend of mine, Scott Fer-
ris. Scott is administrative assistant to Gov. Mike Sullivan of Wyo-
ming.
Senator DeConcini. Thank you, Mr. Downes.
Now, proceeding back to the questions, my apologies for jumping
the gun there.
As you witnessed, I am very interested in the issue of judicial
temperament, as many of us on the committee are, and I think in
this body. We have a responsibility to advise and to consent and
to confirm or not confirm. We only have you before us on one occa-
sion, and that is going to be for the next 5 or 10 or 20 minutes.
I would like to know from each of you, given your unique back-
ground, three of you having been on the bench before and two prac-
ticing lawyers, and some of you practicing lawyers before going on
the bench, I would appreciate your thoughts on the significance of
what judicial temperament means to you and which elements of
this temperament you consider to be the most important in your
job that you have been nominated to.
946
We will start with you, Judge Urbina.
Judge Urbina. Mr. Chairman, judicial temperament is something
I have paid a lot of attention to over the course of my tenure as
a superior court judge for the last 13 years. I have found not only
is it an important ingredient to me internally, in terms of being
able to function in an objective, calm, and centered fashion, but
just as important is the fact that judicial temperament — appro-
priate judicial temperament — creates an environment in the court-
room, an environment of respect and an environment of calm and
one in which deliberation can take place in an appropriate fashion.
What I do along those lines, Mr. Chairman and Senator Simpson,
is that I make sure that I address every party that comes before
the court, whether that party is represented by counsel or whether
the party is not. I say good morning or good afternoon or whatever
the case may be. I make sure I maintain eye contact, but most im-
portantly, I make sure that the parties, as well as the lawyers who
represent them, understand and know that I am listening to them.
I recall that as a lawyer, at times, one of the most frustrating
parts of being an attorney was having a judge who I was not con-
vinced had listened to me. Losing or not prevailing, I think, is a
much more tolerable experience if you can be assured that you
have a judge that has listened to you.
Senator DeConcini. Thank you.
Judge Paez.
Judge Paez. Senator DeConcini, I come from a large metropoli-
tan court. Over the years, I have had to deal with both pro se liti-
gants and lawyers as well, and I have learned, one of the things
that has served me well, is patience, being patient and respectful
to those who appear in front of me, to be prepared, and to be cour-
teous to all the litigants and the lawyers that appear in front of
me.
I value those items very much, and I will try and continue to
carry them forward with me when I move to the Federal bench, if
I move to the Federal bench.
Senator DeConcini. As a Federal judge — I just ask this of you
because I don't know that any of you will comment on it or not,
you can if you like, and I may ask you specifically, but as a Federal
judge, let us say you are confirmed, you now have a lifetime ap-
pointment. How do you keep a level head? How do you keep from
thinking that, what you say here goes and there is nobody who can
do anything about it unless you break the law or do something
where the ninth circuit — ^you are in the ninth circuit — might take
some disciplinary action?
Judge Paez. Senator, I have always tried to view my role as a
judge. I have always been very respectful for my role as a judge.
I personally don't take myself too serious in the way I deal with
people. I always try to be respectful and acknowledge the role and
the importance that each person has in the courtroom.
That has served me well, and I think that I will try my very best
to carry that forward if and when I make it to the Federal bench.
Senator DeConcini. Thank you, Judge.
Judge Hood.
947
Judge Hood. I think judicial temperament is very important, too,
and I would agree with all the things, courtesy, manners, knowl-
edge of the law, preparedness.
I also try to remember, though, that even though I am sitting at
the bench and hear cases day in and day out, that for the people
that are out there on the other side of the bar, this may be the only
time they come to court. I may be the only judge they see, and
what they think about all the rest of the judges in my community
is by what I do there and how I treat people, including the lawyers,
the litigants, the witnesses, and on down to the — well, not down to,
but up to, probably — the jurors and the staff people.
If you keep that in mind, I think you will remember that you
need to have all the things that we have said here today and treat
people fairly and equally when they come in your courtroom.
Senator DeConcini. Mr. Friedman, can you respond, please?
Mr. Friedman. Yes, Mr. Chairman. I have been before a lot of
judges in my time and I have seen people with different kinds of
temperament. I think that courtesy, patience, listening to all sides,
treating people fairly and decently, appearing to treat people fairly
as well as actually doing so, communicating with people.
I had occasion recently to be called for jury duty. I was not se-
lected, but I spent 2 days going from courtroom to courtroom being
stricken from juries because I had been both a prosecutor and a de-
fense lawyer, and I watched how different judges dealt with juries.
To pick up on what both Judge Hood and Judge Urbina have
said, I saw some judges really look each juror in the eye and com-
municate with the jurors and explain to them the importance of the
system and use real English, not legalese, and make the jurors, as
well as witnesses, who come into that courtroom realize that they
are important and that the system is important and that they are
an important part of it.
I would try to do that, and I think that based upon what I have
done as a lawyer, the way I have treated people, that I am capable
of doing that and that I will do it.
Senator DeConcini. Mr. Downes.
Mr. Downes. Mr. Chairman, I was fortunate when I started my
practice in Wyoming to practice before the Honorable Ewing T.
Kerr, who, ironically now, the Federal courthouse in which I may
serve, if you see fit, is named.
I think Senator Simpson would attest to the fact that all of us
who have practiced in Wyoming and who aspire to be judges were
mentored by a truly great man who died last year at the age of 93.
The hallmark of this man, and I would hope the hallmark of my
tenure as a judge, was his compassion and his decency, his thor-
ough decency toward people. No one that I know of who ever went
into his court thought that they were given short shrift or treated
with disrespect or discourtesy.
I think that is a hallmark of any Federal judge, and if I can live
up to the legacy that Judge Kerr left for Judge Johnson and Judge
Brimmer and now me, it would be what I aspire to.
Senator DeConcini. Mr. Downes, just hypothetically, or not hy-
pothetically, in reality, almost, you are going to be confirmed, I
think, and now you are a judge. You are sitting there with a life-
time appointment. Someone comes before you that you never liked
948
in the bar and you thought may have been taking the wrong posi-
tion, as well as maybe, in your judgment, not conducting himself
properly.
How do you discipline yourself to be just what you said you in-
tend to be, following this mentor?
Mr. DOWNES. That training for me started many years ago with
my mom and dad. My mom is in a nursing home in Massachusetts
today, and my father has passed away, but they taught me toler-
ance. I think I have learned that it is important to have that toler-
ance. I have tried not to be judgmental as a lawyer. I have tried
to stand back and be perceptive.
I think that is important, that I would undertake to conduct my-
self in that fashion as a Federal judge. I know it is essential that
I do that, and I would have to put aside my own feelings about per-
sonalities to make sure that I did my job appropriately.
Senator DeConcini. Thank you.
Let me also address each of you a question that Senator Simpson
asked in the last round. I don't want to take any of his questions,
but that deals with judicial activism from the court.
I would appreciate the benefits of your views as to what is judi-
cial activism and what is legislating from the bench, in your opin-
ion, £ind what do you think, if any, is the proper way to conduct
yourself, presuming you do not support that?
Judge Urbina.
Judge Urbina. Yes, Mr. Chairman, your presumption is correct.
Judicial activism, as I understand it, is an attitude that impels a
judge to have a result-oriented approach toward the litigation, to-
ward the controversy that is before him or her. That is to say that
the judge may take a view before the trial begins or while the trial
is still in progress and then attempt to have that view become the
outcome of the case.
That, in my view, is inappropriate. What dictates the outcome of
the case in every case is the evidence and the law. A judge should
discipline him or herself in the appropriate fashion, which is to
eliminate the biases, the prejudices, or the other predispositions
that may conflict with that judge's ability to view the law, make
fair applications of it, and, when appropriate, find the facts and
find them in a neutral, objective, and appropriate fashion.
In that fashion and in that way, I believe judicial activism is
eliminated and the true purpose of a judge is accomplished.
Senator DeConcini. Thank you.
Judge Paez.
Judge Paez. Senator DeConcini, I share your views on judicial
activism. I also would like to echo what Judge Parker said, which
was his view of judicial activism was a personal agenda or personal
bias that one might have.
Each case that I have decided over the years, I have always tried
to decide on the merits, on the facts, and on the law. If I am con-
firmed as a Federal district court judge, I will approach each case
the same way. I have no agenda, no biases that I have that I am
aware of, and each case will be handled on the merits, on the law
and commonsense.
Senator DeConcini. Thank you.
Judge Hood.
949
Judge Hood. I agree with both of what I hope will be my col-
leagues, if we are all so fortunate to be confirmed.
I think judicial activism is also deciding something beyond what
the case requires you to decide, to resolve it on the merits of the
case and the law that applies to those facts. I agree that there is
a limit to what the judge should do in any case, and what the judge
should do is to follow the law and apply that law to the facts. If
you do that, which is what we every day tell our jurors to do, you
won't be involved in that kind of activity.
Senator DeConcini. Mr. Friedman.
Mr. Friedman. Mr. Chairman, I agree with all that has been
said by my three colleagues, all of whom have been judges.
I think the role of the judge is to apply the law, to interpret the
law when it is not clear, but to look for the clarity in the statute,
if it is there, to follow the precedents, if they are there. It is not
the job of the judge to legislate or to make policy or to try to
achieve a certain result. The result ought to be dictated by the
facts found by the judge or by the jury and by the law as it is writ-
ten by the legislature or by the precedents of the higher courts.
Senator DeConcini. Thank you.
In some instances, Mr. Friedman, the Congress has actually di-
rected the court to be a legislative body by laws where they, in my
State of Arizona, directed the district court there to divide two In-
dian reservations. How do you address that, if that is the mandate?
Mr. Friedman. I think that a judge has to follow the law, and
if the law is to act in a way that is not normally the judicial proc-
ess but quasi-judicial or almost legislative, if that is what the Con-
gress were to tell a Federal district judge, I guess that is what
would have to be.
There was a time in the District of Columbia when the Federal
district judges chose the school board. Now that may not have
made much sense, but that was the law.
Senator DeConcini. That was the law, thank you.
Mr. Downes.
Mr. Downes. I agree with my colleagues here at the witness
table, Mr. Chairman. Any trial lawyer who has been the victim of
judicial activism, the sting stays long after the event. I have had
that experience. I have walked into a courtroom and I have known
that that judge had his mind made up before I could ever get a
word out of my mouth.
I would hope that, having had the benefit of that experience, I
will never victimize anybody else in that fashion.
Senator DeConcini. Thank you.
Senator Simpson, let me insert in the record at this moment a
letter from the Gk)vernor of your fine State, Mike Sullivan, in sup-
port of Mr. Downes.
[The letter from Governor Sullivan follows:]
State of Wyoming,
Office of the Governor,
Cheyenne, WY, May 25, 1994.
Hon. Joseph R. Biden, Jr.,
Chairman, U.S. Senate Judiciary Committee, Washington, DC.
Dear Senator Biden: We are sorry oiir schedules do not permit us to testify in
person this afternoon as your committee takes up the nomination of William F.
950
Downes as U.S. District judge for Wyoming, but we hope you will incorporate this
letter into the record.
It is with great pleasure that we offer our wholehearted and enthusiastic support
for Mr. Downes and urge the members of your committee to recommend Mr. Downes
for confirmation by the Senate.
We were proud to recommend Bill's name to President Clinton, for we truly be-
lieve he has the legal abilities and judicial temperament to be recognized as one of
the President's most outstanding judicial appointments.
We are equally proud to recommend Bill Downes to this committee today. Bill is
regarded with high esteem in Wyoming's legal community and is widely admired for
both his intellect and his integrity — even by those who disagree with him on certain
issues.
We believe that Bill Downes will uphold the law of the land in all areas before
the court and apply that law with fairness, wisdom and common sense. We look for-
ward to his service to the people of the United States in the federal judiciary.
With best regards, we are
Very truly yours,
Mike Sullivan,
Governor.
Kathy Karpan,
Secretary of State.
Senator DeConcini. Senator Simpson.
QUESTIONING BY SENATOR SIMPSON
Senator Simpson. Mr. Chairman, I thank you.
I have just a few questions, in no particular order.
Mr. Friedman, I might ask, as a district court judge, you, of
course, would be bound to follow precedent laid down by the Su-
preme Court and the court of appeals on which you sit. You, too,
will be faced with cases of first impression. What principles would
guide you, or what methods would you employ in deciding cases of
first impression?
Mr. Friedman. I think you do begin with precedents, even if they
are not directly on point. Hopefully, there are some that provide
guidance, that provide analogies. In the due process area, for exam-
ple, there may not be a case that talks about what processes do in
a particular factual context but one that seems so close that the
Supreme Court has spoken to or the circuit has spoken to that you
could try to apply that same logic.
If your own court of appeals hasn't spoken, obviously you look to
other courts of appeals or the persuasive authority of other district
courts. One ought not to try to divine the result out of whole cloth,
but rather to look to if the legislature has spoken or if other courts
have spoken.
In the end, I guess I agree with what Judge Motz said earlier,
that if it is truly first impression, after you have done all the read-
ing and all of the thinking you can do, then you bring to bear in
the context of the teachings that exist your best judgment, and
judges do bring judgment to their jobs, I would hope.
Senator Simpson. I might note, Judge Urbina, I was very im-
pressed with your remarks about listening, and yours. Judge Paez,
about patience. I think those are very important. I know that Sen-
ator DeConcini and I have both practiced law in the real world. I
was always appalled at some judges who just were sitting, looking
right through you with a 2,000-mile stare. You know the kind,
don't you? It was not Judge Kerr of Wyoming, I can tell you, who
951
was a magnificent, masterful man, who listened and was patient
and took the case6 into his heart.
That is very iiifiportant to me, to listen, because I think it is the
same in politics/ I would never vote for a person who looked like
he never was listening to what was being said. Sometimes people
plead with us and think, are they paying attention to us, and that
is why there is so much discord in the country with politicians.
They think we don't listen, but we do, some to greater degrees than
others, obviously with you in your experience.
Obviously, you would have to follow Supreme Court precedent
faithfully and give it full faith and force, and you would do that
even if you personally disagreed with that precedent, would you?
Judge Urbina. Yes, sir.
Senator Simpson. Are you committed to following the law of the
circuit in which you would sit?
Judge Urbina. I am so committed, Senator Simpson.
Senator SIMPSON. What would 3''0U do if what the Constitution
and what the laws require conflicts with what you think the law
ought to be?
Judge Urbina. My function as a judge is to follow precedent, not
to follow my personal inclinations in the resolution of disputes that
come before me.
Senator Simpson. Judge Hood, are you also committed to follow-
ing the precedent of the Supreme Court and the court in which you
would sit, the appeals court, giving it full force even if you person-
ally disagreed strongly with that precedent?
Judge Hood. Yes, Senator Simpson.
Senator Simpson. You could do that?
Judge Hood. I would do that.
Senator Simpson. If the constitutional laws conflict with what
you think the law ought to be, you would carry out what the Con-
stitution and the laws require?
Judge Hood. Yes, I would.
Senator Simpson. One of the things that has come up through
the years in the committee, and I am going to ask it of Mr.
Downes, too, with regard to clubs, I note that there are various
clubs listed with all of you.
Are any of these clubs discriminatory by gender or by race, these
various clubs? I see women's clubs and black judges' clubs. This
comes up on a regular basis, at least such a regular basis we even
did a resolution on it once. In fact, they even said the Masons were
racist, so I had to retool my thinking on that, but that wouldn't be
the first time.
Do £iny of the clubs that you mention here, any of you, are they
discriminatory in any way?
Judge Urbina. I would start, since I am first in line, and the an-
swer is no, none of the clubs I belong to are discriminatory in any
fashion that I am aware of.
Judge Paez. Senator Simpson, I have never belonged to any
clubs. I am a member of a few bar associations, and none of them
are discriminatory in any manner, in any way.
Judge Hood. None of the organizations or clubs that I belong to
discriminate, either.
Senator Simpson. By gender?
952
Judge Hood. No. I do belong to a club that is a mothers' club,
but I am sure that we would welcome any father who wanted to
belong. [Laughter.]
Senator Simpson. That is what the League of Women Voters did,
too, years ago, and that is all right with me. But there are no
women-only clubs that you belong to?
Judge Hood. There are none that discriminate against men.
There are some in which there are only women members, but not
because they discriminate against men.
Senator Simpson. See, that is the funny part about all of that.
People choose to associate, and I have sat here for 15 years and
watched men's clubs receive criticism and women's clubs receive
criticism just because they chose to associate, and that is what you
are saying you do.
Judge Hood. As I said, I am sure if a father came through and
wanted to be a member, we would be happy to have him. The na-
ture of the organization that I am referring to is that it is a group
of women who do activities for their children and other children,
kind of a community service group and also a service to our own
children.
We haven't had a circumstance yet where there were some chil-
dren in the club, which is really for them, who, for some unfortu-
nate reason, no longer had a mother. I think in that instance, we
would very much welcome their father to participate. Really, in the
scheme of things, it is a club for families. We encourage the fathers
to go on the outings that are planned for the children.
Senator Simpson. We have been in so many of those with regard
to the issue of invidious discrimination, which is much different
than sometimes innocent association, and we have to deal with
that regularly. It is an appalling exercise.
Judge Hood. I don't think any of these are clubs that discrimi-
nate against the men.
You mentioned a black judges' association. I was the president
of it once, and it also had some non-African-American members, in-
cluding at least one Hispanic and one Caucasian, at least, that I
am aware of at the time I was president.
Senator SiMPSON. Judge Friedman.
Mr. Friedman. Mr. Friedman. If I am lucky enough, it will be
Judge Friedman. [Laughter.]
Senator Simpson. They are all judges. Keep going. We accept you
and Bill. We may catch you up.
Mr. Friedman. Senator, in response to your question, I do not be-
long to any clubs that discriminate in any way. I have consistently
declined membership in clubs that discriminate.
With respect to bar associations, I have the same answer. In fact,
I am a member, among others, and have been for a long time, of
the Women's Bar Association of the District of Columbia, and as
Judge Urbina knows, of the Hispanic Bar Association of the Dis-
trict of Columbia.
Senator SiMPSON. Bill, go ahead.
Mr. DOWNES. Senator Simpson, I wouldn't mind if you wanted to
call me "Judge." [Laughter.]
I am a member of a number of clubs, none of whom now engage
in invidious discrimination. One of the clubs of which I am a mem-
953
ber did have discriminatory policies with respect to women. I
played, I think, an instrumental role in changing that policy so
that women have full voting rights and tee times, and if you are
a golfer. Senator, you know that that is almost more important
than voting rights. That club has bylaws now which give women
equal access to all facilities and voting rights.
Senator Simpson. Indeed, I think that was just recently out here
in this part of the country, something about women were finally
granted tee times in a certain club here in this area, so we were
obviously way ahead of them in Wyoming, the Equality State, the
first State to give women the right to vote in the Western World.
We must add that. Did you know that, in 1869?
Senator DeConcini. And the first State to give women's tee
times, too? [Laughter.]
Senator Simpson. I think that was Arizona, that did that.
I think Senator DeConcini really touches on one which is very
real, that we have seen, not a great many, but in all administra-
tions, all philosophies, certain judges who with lifetime prowess on
the bench, much like professors sometimes who confuse tenure
with divinity, and they get on the bench and they say, here I am
for life. So what?
It is very difficult, and it is anguishing for us to go through im-
peachment. It is tedious and terrible. None of us enjoy that, and
so difficult.
If you were to come to the bench and have this lifetime appoint-
ment, you intend to remain with the same attributes of sensitivity
and humanness that you have demonstrated to us here today, is
that correct?
Judge Urbina. Yes.
Judge Paez. Yes.
Judge Hood. Yes.
Mr. Friedman. Yes.
Mr. DOWNES. Yes.
Senator Simpson. Forever and ever? Get your hand up again.
[Laughter.]
I think those attributes of patience and listening and tolerance
will get you far. I think that is really the extent of my questions.
I will just ask Mr. Downes, you are going to preside over a very
mixed bag of trials, from civil to criminal, and your greatest part
of your legal experience was in the area of civil law and an ace liti-
gator. Do you feel prepared to preside over criminal cases and all
the rest of the array of litigation?
Mr. DowNES. It has been a while. I did some prosecution for the
Marine Corps and I did some in my earlier days as a lawyer in
Green River, WY, but I admit to you. Senator, that my skills as a
person knowledgeable in criminal law is somewhat wanting. I in-
tend to rectify that, and, in fact, have already talked to the chief
judge of my district, Judge Johnson and Judge Brimmer. I have
also been given some good advice by Judge Battey of Rapid City
and also our appellate court judges. I am going to take full advan-
tage of what the administrative offices of the U.S. courts offer with
respect to education.
954
I am hopeful that I can tell you honestly that I will be fully pre-
pared to discharge my duties in a criminal arena as well as I can,
I think, in the civil arena.
Senator Simpson. You feel that you will be exercising judicial
temperament and not engaging in judicial activism?
Mr. DOWNES. I think I have already addressed that issue of judi-
cial activism. Personally, I find that offensive.
With respect to temperament, I think, Senator, most of my col-
leagues, including significantly, for me, at least, significantly, most
of the lawyers who have opposed me in a courtroom have come for-
ward to support my nomination. I have tried, as a lawyer, never
to use my law license as a license to abuse any human being. If
I can fulfill that responsibility as a lawyer, I hope to be able to do
that as a judge.
Senator Simpson. Mr. Chairman, this is an impressive group.
You and I have done many of these together over the years.
Finally, one of the things, of course, that confronts us in the
country in all Federal courts is this difficulty in keeping up with
the workload. Backlogs and delay have become the hallmarks of
the legal system in many courts. I hope that you feel your work
habits are of such that you are ready to attack that problem and
ensure that justice is not delayed for these people who wait, and
there are many in this country, because of delays through the last
administration and this administration for various reasons.
You are ready to attack that problem, are you?
Judge Urbina. Yes.
Judge Paez. Yes.
Judge Hood. Yes.
Mr. Friedman. Yes.
Mr. DowNES. Yes.
Senator SIMPSON. Thank you, Mr. Chairman.
Senator DeConcini. Thank you. Senator Simpson.
Judges and lawyers, thank you for your testimony. You have
been most forthcoming, and this Senator appreciates that. Your
true responses, at least my interpretation of them, is extremely
helpful in our deliberations. We thank you and compliment you on
the fine records that you bring with you before this committee for
consideration for confirmation.
The committee will stand in recess, subject to the call of the
Chair.
[Whereupon, at 4:11 p.m., the committee adjourned, subject to
the call of the Chair.]
[Submissions for the record follow:]
955
SUBMISSIONS FOR THE RECORD
UNITED STATES SENATE
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (including any former names used.)
Diana Gribbon Motz, nee Diana Jane Gribbon.
2. Address: List current place of residence and of rice
address (es) .
626 B Courthouse East 123 St. Dunstan's Road
111 N. Calvert Street Baltimore, Maryland 21212
Baltimore, Maryland 21202
Date and place of birth.
July 15, 1943. Washington, D.C.
4. Marital Status (including maiden name of wife, or husband's
name) . List spouse's occupation, employer's name and business
address (es) .
Spouse: John Frederick Motz
United States District Court Judge
District of Maryland
101 Lombard Street
Baltimore, Maryland 21201
Employer: United States
5. Education; List each college and law school you have
attended, including dates of attendance, degrees received, and
dates degrees were granted.
Vassar College, 1961-1965; B.A. in 1965.
University of Virginia Law School, 1965-1968; J.D. in 1968.
6. Emp lovment Record : List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or
employee since graduation from college.
956
Summer 1965
Summer 1967
1968-1971
1971-1976
1974-1976
1971-1985
1975-1991
1976-1978
1980-1984
1986-1991
1986
1986
1986
1987-1991
1987-1988
1988
1991-present
1993
1993
United States Justice Department,
Civil Rights Division, intern
Carter Ledyard & Milburn (law firm), summer.,
associate -<';
Piper & Marbury (law firm), associate
YWCA of Greater Baltimore (non-profit) , Board
of Directors
Junior League of Baltimore (non-profit) , Board
of Directors
Maryland Attorney General's Office, Assistant
Attorney General
Union Memorial Hospital (non-profit) , Board of
Directors
Guilford Association (non-profit neighborhood
association) , Board of Directors
Maryland Hospital Laundry, Inc. (non-
profit adjunct to a number of Maryland
hospitals). Board of Directors, 1980-84;
President, 1983-1984.
Frank, Bernstein, Conaway & Goldman, partner
Fraskop Partnership (less than 1% ownership of
portion of law offices building,
law firm defunct)
American Bar Foundation (non-profit) , Fellow
American Law Institute (non-profit) , Fellow
Legal Mutual Society (non-profit) , Board of
Directors
Wranglers Law Club (non-profit) , President
Maryland Bar Foundation (non-profit) , Board of
Directors
State of Maryland, Judiciary, Associate Judge,
Court of Special Appeals
Young Victorian Theatre, Inc. (non-profit).
Board of Directors
Johns Hopkins Hospital (non-profit) , Board of
Directors
- 2 -
957
f^ilitarv Service: Have you had any military service? If so,
give particulars, including the dates, branch of service, rank
or rate, serial number and type of discharge received.
No.
8. Honors and Awards ; List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
Federal Courts Study Committee, 1988-1990
I was appointed by Chief Justice Rehnquist to a 15 member
committee created by Congress to make recommendations as to
the future and jurisdiction of the federal courts. The
Committee was composed of two Senators, two Congressmen, five
federal judges, the Chief Justice of the Supreme Court of
Washington, a former solicitor general, the Chief of the
Criminal Division of the United States Department of Justice,
the Chief of a State Public Defender Program, a former
president of the American Bar Association, and me. After
fifteen months of study, including thirteen public hearings
all over the United States - i.e. . from Boston to Salt Lake
City to Seattle to Atlanta - the Committee issued a 200-page
report containing more than 100 recommendations. Some of
those recommendations have now been incorporated in proposed
federal legislation.
American Law Institute
Fellow, American Bar Foundation
Fellow, Maryland Bar Foundation
Who's Who in American Law
Who's Who of American Women
Graduated from Vassar College, cum laude, and from the
University of Virginia Law School with honors
Editorial Board of University of Virginia Law Review, 1967-
1968.
9. Bar Associations; List all bar associations, legal or
judicial-related committees or conferences of which you are or
have been a member and give the titles and dates of any
offices which you have held in such groups.
American Law Institute, 1986 -
- 3 -
958
American Bar Foundation, 1986 -
Maryland Bar Foundation, 1988 -
American Bar Association, 1969 -
Maryland Bar Association, 1969 -
Chairman, Appellate Practice Committee, 1993 -
and 1982-1984
Member, Litigation Council, 1986-1991
Bar Association of Baltimore City, 1969 -
Women's Bar Association of Maryland, 1990 -
Member, Maryland Judicial Conference, Executive
Committee, 1992 -
Panelist, State of Maryland Judicial Conference
May, 1992 (Moderated and participated in a program on
Sanctions under Md. Rule 1-341.)
Member, Program Committee for Fourth Circuit Judicial
Conference, 1985-1991
Panelist, Judicial Conference of the United States Court
of Appeals for the Fourth Circuit, June, 1990
"Federal Courts S ady Committee" (Panel discussion
of the Committee's recommendations)
Panelist, Judicial Conference of the United States Court
of Appeals for the Fifth Circuit, May, 1990,
"Federal Courts Study Committee" (Panel discussion
of the Committee's recommendations)
Panelist, Judicial Conference of the United States Court
of Appeals for the Fourth Circuit, June, 1983, "Attorneys
ees as an Item of Expense." (My portion dealt with some
proposals as to S 1988 fees) .
10. Other Memberships; List all organizations to which you belong
that are active in lobbying before public bodies. Please list
all other organizations to which you belong.
The only organizations to which I belong that have ever
lobbied are the American Bar Association and the Johns Hopkins
Hospital; I have never participated in any lobbying efforts.
Johns Hopkins Hospital
Board of Directors, 1993 -
Young Victorian Theatre
Board of Directors, 1993 -
- 4 -
959
Task Force on the Feasibility of Future Consolidation of State
Psychiatric Hospitals, 1993 -
Round Table Law Club, 1986 -
Wranglers Law Club, 1982 -
Pooh-Bah (President) 1987
11. Court Admission: List all courts in which you have been
admitted to practice, with dates of admission and lapses if
any such memberships lapsed. Please explain the reason for
any lapse of membership. Give the same information for
administrative bodies which require special admission to
practice.
The Supreme Court of the United States - 1980
United States Court of Appeals for the
Fourth Circuit - 1973
United States District Court for the
District of Maryland - 1969
Court of Appeals of Maryland - 1969
12. Published Writings; List the titles, publishers, and dates of
books, articles, reports, or other published material you have
written or edited. Please supply one copy of all published
material not readily available to the Committee. Also, please
supply a copy of all speeches by you on issues involving
constitutional law or legal policy. If there were press
reports about the speech, and they are readily available to
you, please supply them.
I have contributed to various continuing legal education
outlines on administrative law, media access to the courts,
motions practice, appellate practice, federal, and state
injunctive practice. These were not published. A
representative list of seminars for which these outlines were
prepared is set forth in answer to question 31.
The only article that I have published since law school
is: Motz and Baida, "The Due Process Rights of Post Judgment
Debtors and Child Support Obligors," 45 Md. Law Rev. 61
(1986), which I co-wrote with Andrew Baida. A copy of that
article is attached. I have also attached a short essay I
recently wrote at the request of Paul Mark Sandler and Andrew
Levy, who are editing a book on appellate practice. My
understanding is that the book will be published within the
year and that my essay, titled "Appellate Argument" will be
included in the book.
- 5 -
960
Finally, I often give speeches to bar groups, law
students, women's groups, etc. but inevitably those speeches
are designed to educate (discussion of appellate practice,
statutory construction, motion's practice, administrative
procedure act, etc.) or entertain (anecdotes) or to encouraige
public service. I generally speak extemporaneously or from
notes, which I do not retain. These speeches do not involve
constitutional law or "legal policy" in the sense that it is
used here. To my knowledge, there has never been any press
report of any of my speeches.
13. Health; What is th4 present state of your health? List the
date of your last physical examination.
Excellent. December, 1993.
14. Judicial Office; State (chronologically) any judicial offices
you have held, whether such position was elected or appointed,
and a description of the jurisdiction of each such court.
I presently serve as an Associate Judge, Court of Special
Appeals of Maryland; it is the only judicial office I have
ever held. I was appointed by the Governor in May, 1991,
after being recommended by a Judicial Nominating Commission;
I was "retained" by the voters in the 1992 General Election.
The Court of Special Appeals is the state's intermediate
appellate court. We hear all appeals - civil and criminal -
fror. the trial courts of general jurisdiction, except cases in
which the death penalty has been imposed, certain election law
cases, and certain appeals from orders of a court in a savings
and loan conservatorship. We also can, but need not, hear
i.e. . exercise a kind of certiorari jurisdiction over, cases
originating in the Maryland District Courts (trial courts of
limited jurisdiction) , which already have been appealed to a
circuit court (trial court of general jurisdiction) .
Approximately 2,000 appeals are filed with us each year. Some
appeals are dismissed, some are consolidated, and some are
settled, so that each of the thirteen judges writes
approximately 120 opinions a year.
15. Citations; If you are or have been a judge, provide:
(1) citations for the ten most significant opinions you have
written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or where
your judgment was affirmed with significant criticism of your
substantive or procedural rulings; and (3) citations for
significant opinions on federal or state constitutional
issues, together with the citation to appellate court rulings
- 6 -
961
on such opinions. If any of the opinions listed were not
officially reported, please provide copies of the opinions.
a. Citations for the ten most significant opinions that
I have written are as follows: .<
1. O'Hara v. Kovens. 92 Md. 9, 606 A. 2d 286, cert.
denied. 328 Md. 93 (1992), cert, denied. U.S. ,
113 S.Ct. 1282 (1993) .
2. Brown V. Ashton. 93 Md. App. 25, 611 A. 2d 599,
cert, granted. 328 Md. 462 (1992).
3. Board of School Commissioners v. James. 96 Md.
App. 401, 625 A. 2d 361, cert, denied. 332 Md. 381 (1993).
4. Keene Corp. v. Hall. 96 Md. App. 644, 626 A. 2d
997 (1993).
5. Stevenson v. State. 94 Md. App. 715, 619 A. 2d
155 (1993).
6. Mattinqly v. Mattinqly. 92 Md. App. 248, 607
A. 2d 575 (1992) .
7. Parker v. Columbia Bank. 91 Md. App. 346, 604
A. 2d 521, cert, denied. 327 Md. 524 (1992).
8. Allen v. State. 89 Md. App. 25, 597 A. 2d 489
(1991), cert, denied, 325 Md. 396 (1992).
9. Fowler v. Printers II. Inc.. 89 Md. App. 448,
598 A. 2d 794 (1991), cert, denied. 325 Md. 619 (1992).
10. Esslinqer v. Baltimore City. 95 Md. App. 607,
622 A. 2d 774, cert, denied. 331 Md. 479 (1993).
b. I am not aware of any case in which I have been
affirmed in which my substantive or procedural rulings were
criticized. Those cases in which my opinions have been
reversed or vacated are as follows:
1. Coe V. Hayes. 328 Md. 350, 614 A. 2d 576 (1992),
vacating Haves v. Coe. 88 Md. App. 491, 595 A. 2d 484
(1991). The case raised the question of whether
equitable conversion could be applied to proceeds from
the sale of real estate, which a decedent contracted to
sell before this death, but which was not sold until
after his death. The trial court held the doctrine of
equitable conversion was not applicable. Our court, in
my opinion, held it was and reversed. The Court of
Appeals agreed that the doctrine was applicable, but
- 7 -
962
concluded it was unclear, on this record, whether the
doctrine should be applied because it was unclear whether
the decedent had entered into a specifically enforceable
contract to sell the property before his death.
Accordingly, the Court of Appeals vacated our judgment
and remanded to the circuit court for further findings.
2. Nolt V. USF&G. 329 Md. 51, 617 A. 2d 578 (1993),
reversing. USF&G v. United States Fire Co.. 90 Md. App.
327, 600 A. 2d 1178 (1992). Two insurance companies
battled to determine which was responsible for coverage
for damages arising from an accident caused by a truck
driver, who regularly drove for an interstate carrier,
insured by one company, but, who, on the day of the
accident, was driving for an interstate carrier, insured
by the other company. The trial court concluded both
insurers were equally liable. Our court reversed. In my
opinion, I reasoned that it was undisputed that at the
time of the accident the driver was operating under the
bill of lading for Shirk, hauling cargo for Shirk,
pursuant to Shirk's instruction, and that there was
simply no evidence that the driver was in any way acting
on behalf of the other carrier. Summers. I followed
federal precedent and concluded that in such
circumstances, the insurer of the carrier whose ICC
authority was implicated, i.e. . Shirk's insurer, was the
primary insurer. The Court of Appeals did not disagree
with my conclusions as to the facts, or my reading of
federal precedent, but decided that it would not follow
the federal precedent because it led to an "uncertain"
result. Rather, it held that since both insurers
provided primary coverage to their respective insureds,
they must equally share liability.
3. Harris v. State. 331 Md. 137, 626 A. 2d (1993),
reversing. Rich v. State. 93 Md. App. 142 (1992),
vacating and remanding. Jones v. State (unreported) (copy
attached) . In Harris, the Court of Appeals rejected most
federal precedent to hold that "use" in a State statute
making it a crime for a person to use a firearm during,
and in relation to, a drug trafficking crime means more
than possession of a firearm. In Rich, written by
another judge on my Court, we had held, relying on the
federal precedent, to the contrary. In an unreported
opinion, Jones v. State. I authored, we relied on Rich;
Jones was vacated and remanded for reconsideration in
light of Harris.
- 8 -
963
4. Medical Mutual Liability Ins. Society of
y^aryland v. B. Dixon Evander & Associates. 331 Md. 301,
628 A. 2d 170 (1993), dismissing appeal in 92 Md. App.
551, 609 A. 2d 353, cert, denied. 328 Md. 447, 614 (1992>.
This was an appeal from a jury verdict finding that
Medical Mutual had tortiously interfered with Evander 's
business relationships and awarding Evander $1,725
million in compensatory damages and $7 million in
punitive damages. The jury failed to reach a verdict on
the defamation count and a mistrial was declared as to
it. The trial court then, at the request of all parties,
certified the judgment as final. On appeal, we affirmed
in all respects, except that we remanded for the trial
court to make some factual findings as to the punitive
damages. 92 Md. App. 551, 609 A. 2d 353. Medical Mutual
petitioned for certiorari, which was denied. 328 Md.
447. After findings were made on remand. Medical Mutual
again petitioned for certiorari, which was then granted.
The Court of Appeals concluded that the case had been
improperly certified by the trial court and the judgment
was not final, and so, dismissed the appeal.
5. State V. Sanders. 331 Md. 378, 628 A. 2d 209
(1993) reversing an unreported opinion, Sanders v. State
(copy attached) . A trial court agreed to a plea
agreement and then refused to honor it and also refused
to permit the defendant to withdraw his guilty plea. We
concluded that this result was wrong. The record was
unclear but it seemed to our court, in an opinion I
authored, that a fair reading of the record was that the
trial judge had originally stated he would honor the
agreement if the defendant truthfully disclosed prior
criminal offenses and the defendant believed he had done
this, but was confused because he only served one prison
term for two offenses. Accordingly, we remanded so that
the defendant could be sentenced pursuant to the plea
agreement. The Court of Appeals agreed that the result
reached by the trial court was wrong; it held, however,
that the trial court could reject the plea agreement but
then had to permit the defendant to withdraw his guilty
plea.
6. Epps V. State. 333 Md. 121, 634 A. 2d 20
(1993) reversing an unreported opinion, Epps v. State
(copy attached) . When a prisoner was convicted of
common law battery for throwing an unknown liquid on a
prison guard, the trial court sentenced him to twenty
years imprisonment. This sentence followed a sentence
of ten years imprisonment imposed only two months earlier
for another battery on a prison guard, an attack with a
sharp piece of coat hanger. The prisoner challenged the
sentence as cruel and unusual punishment violative of the
Eighth Amendment. Our court, in an opinion written by
me, found this was not the sort of rare case in which the
- 9 -
964
Supreme Court has indicated that a sentence can be
inferred to be grossly disproportionate. The Court of
Appeals reversed, with two judges dissenting.
7. Brantley v. Fallston General Hospital. Inc.-^;
Md. , ^A.2d (1994) (copy attached) reversing an
unreported opinion, Brantley v. Fallston General
Hospital. Inc. (copy attached) . This case involved an
appeal from a dismissal of an action for lack of
prosecution on the ground, inter alia, that contrary to
the Maryland rules no hearing was held prior to the
dismissal. We affirmed in an opinion authored by me. As
to this issue, we rejected the appellees' sole argument
that failure to hold the hearing was harmless error but
concluded that there was no error in not holding a
hearing because no party, only plaintiff's attorney,
requested one. This was so because the plaintiff had
died fifteen months before the case was dismissed and no
heir or successor in interest was substituted for him
until after the case was appealed. The Court of Appeals
vacated on the basis of "a new question" raised by the
appellees "based on part of the rationale" of our
decision, i.e. . there could be no appeal at all without
a live party pursuing the case. The effect of this
decision is the same as ours - to leave intact the trial
court's dismissal of the action.
8. Holmes v. State. ^Md. , A. 2d _
(1994) (copy attached) reversing an unreported opinion.
Holmes v. State (copy attached) . A criminal defendant,
representing himself, stated at trial that although he
did not want to testify he did want to say "a few things
in [his] behalf." He was permitted to do this, after the
trial court had found him guilty of certain of the
offenses. On appeal, the defendant claimed he had been
denied an opportunity for closing argument. Our court,
in an opinion authored by me, concluded that because the
defendant's remarks were more in the nature of allocution
than closing argument, and because he never protested any
denial of closing argument to the trial court, the record
did not "clearly disclose" either his waiver or denial of
closing argument. In such circumstances, the Court of
Appeals had previously held the proper course is to
affirm the judgment and "leave open" a defendant's right
to seek post conviction relief, and so that is what we
did. The Court of Appeals reversed, holding that the
defendant had tried to give a closing argument and been
denied that right, and so ordered reversal of the
convictions.
- 10 -
965
c. citations of significant opinions of nine on federal
or state constitutional issues and citations of later
appellate rulings on these cases are as follows:
1. Baltimore Sun v. Thanos. 92 Md. App. 227, 607
A. 2d 565 (1992) .
2. Brown v. Ash ton. 93 Md. App. 25, 611 A. 2d 599,
cert, granted. 328 Md. 462 (1992).
3. Keene Corp. Inc. v. Abate. 92 Md. App. 362
(1992) .
4. Market Tavern v. Bowen. 92 Md. App. 622, 610
A. 2d 295, cert, denied. 328 Md. 238 (1992).
5. O^Hara v. Kovens. 92 Md. App. 9, 606 A. 2d 286,
cert, denied. 328 Md. 93 (1992), cert, denied. U.S.
, 113 S.Ct. 1282 (1993).
6. Epps v. State, unreported (copy attached in
response to question 15b), reversed. 333 Md. 121, 634
A. 2d 20 (1993) .
16. Public Office; State (chronologically) any public offices you
have held, other than judicial offices, including the terras of
service and whether such positions were elected or appointed.
State (chronologically) any unsuccessful candidacies for
elective public office.
None.
17. Legal Career;
a. Describe chronologically your law practice and
experience after graduation from law school
including;
1. whether you served as clerk to a judge,
and if so, the name of the judge, the
court, and the dates of the period you
were a clerk;
2. whether you practiced alone, and if so,
the addresses and dates;
- 11 -
966
3. the dates, names and addresses of law
firms or offices, companies or
governmental agencies with which you have
been connected, and the nature of your
connection with each; -^
I never clerked for a judge or practiced alone; instead, I
began work at Piper & Marbury immediately after my graduation
from law school in 1968.
1968-1971
Associate, Piper & Marbury
100 Charles Center South
36 South Charles Street
Baltimore, Maryland 21201
1972-1986
Office of the Attorney General of Maryland
200 St. Paul Place
Baltimore, Maryland 21202
Assistant Attorney General, 1972-1980
Principal Counsel, Appellate Litigation, 1980-1982
Chief of Litigation, 1982-1986
1986-1991
Partner, Frank, Bernstein, Conaway & Goldman
300 East Lombard Street
Baltimore, Maryland 21202
1991-Present
Associate Judge
Court of Special Appeals of Maryland
626 B Courthouse East
111 N. Calvert Street
Baltimore, Maryland 21202
V«fhat has been the general character of your
law practice, dividing it into periods with
dates if its character has changed over the
years?
Throughout my career, I have appeared in court regularly.
A LEXIS search indicates that I have been involved, as an
- 12 -
967
attorney, in more than seventy cases, with reported opinions,
including five in the Supreme Court; about 4 0% of these case
were in the federal courts and 60% were in the state courts.
In all of these cases, I wrote all, or a substantial part,.,of
the memoranda or briefs and in fifty of them, I also tried -the
case or gave the oral argument. The LEXIS list is, of course,
incomplete as LSXIS does not seem to pick up most unreported
opinions. A representative list of cases with reported
opinions, in which I not only wrote the briefs or memoranda,
but also tried and/or gave the oral argument, is attached
hereto.
From April, 1986, until my appointment to the Maryland
Court of Special Appeals in May, 1991, I worked as a
litigation p?rtner in a large Baltimore law firm. Most of my
cases were commercial disputes involving claims of substantial
money damages, lengthy discovery and complex legal issues,
e.g. . what determines the validity of a letter of credit, the
Federal Reserve Bank's obligations when honoring a draft, who
constitutes a consumer for purposes of the Consumer Protection
Act or the Magnuson-Moss Act, the disclosure obligations of
limited partners to other partners, etc. Typically, my
clients were banking institutions, insurance companies, small
to medium sized corporations, and individuals.
However, I also handled a substantial amount of public
interest litigation. For example, I represented Citizens
Against Saturday Night Specials and obtained for them an
emergency injunction against certain illegal election
practices during a hotly contested referendum campaign. I
also represented a citizens' group in Talbot County in
litigation challenging the initiative provision in the County
Charter. My most interesting public law case was one in which
I represented a sheriff in a very complicated § 1983 suit. A
sixteen-year-old boy was shot and severely brain damaged when
deputies attempted to apprehend a reckless driver. Numerous
constitutional claims were made under the Fourth and
Fourteenth Amendments. The case involved more than twenty
depositions of fact and expert witnesses, and after discovery
and very full briefing, we prevailed in the district court,
and that decision was affirmed by the Fourth Circuit.
Between 1982 and 1986, I served as Chief of Litigation in
the Maryland Attorney General's Office. My practice involved
supervising all trial and appellate civil litigation in the
Office of 200+ lawyers. I decided what cases should be
brought, what defenses made, how cases should be staffed, what
cases should be appealed, when certiorari should be sought,
whether settlement was appropriate, and reviewed (and
sometimes substantially rewrote) every important appellate
brief filed by the Office. For the two years prior to that,
I served as Principal Counsel for Appellate Litigation in the
Attorney General's Office and my practice was similar. My
decision-making, however, was confined to appellate matters.
In addition, throughout my time in the Attorney General's
- 13 -
968
Office, I personally represented the State in numerous civil
and criminal cases in the state and federal courts.
From 1972 to 1981, I was an Assistant Attorney General.
For most of that period, I had small children and worked only
three days per week. From 1976 to 1980, I worked in the Civil
Division doing general trial litigation and represented the
State Election Board in various election contests. From 1972
until 1975, I represented the Department of Human Resources
and handled most of its litigation. From 1968 to 1971, I was
an associate at Piper & Marbury and there worked largely on
tax and estate planning.
vniat percentage of these appearances was in:
(a) federal courts 40%
(b) state courts of record 60%
(c) other courts 0%
3. What percentage of your litigation was:
(a) civil 90%
(b) criminal 10%
4. State the number of cases in courts of record
you tried to verdict or judgment (rather than
settled) , indicating whether you were sole
counsel, chief counsel, or associate counsel.
In addition to settling most matters, I have also
prevailed on pre-trial motions (often after extensive
discovery) in numerous cases and so obtained judgments as to
them. However, I have only participated in trials of ten
cases that I can remember clearly; in three of these, I was
sole counsel; in three, I was chief counsel, usually assisted
by a young associate; and in the rest, I was associate
counsel. I have also participated in a number of trial-like
administrative hearings. In addition, I have been specially
assigned as a trial judge for a few weeks in the summer and
have presided over a number of jury trials then.
vniat percentage of these trials was:
(a) jury 0%
(b) non-jury 100%
- 14 -
969
18. Litigation: Describe the ten most significant litigated
matters which you personally handled. Give the citations, if
the cases were reported, and the docket number and date if
unreported. Give a capsule summary of the substance of each
case. Identify the party or parties whom you represented;
describe in detail the nature of your participation in the
litigation and the final disposition of the case. Also state
as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or
judges before whom the case was litigated; and
(c) The individual name, addresses, and telephone
numbers of co-counsel and of principal counsel for
each of the other parties.
1. Agnew v. State. 51 Md. App. 614, 446 A. 2d 425, cert,
denied. 294 Md. 441 (1982). I was co-counsel at trial in this
case, representing the State of Maryland. The State claimed
that former Vice President Agnew should be required to refund
to the State the money he received as bribes while Governor,
because, as Governor, he was a trustee for the people of the
State and, therefore, held this money in constructive trust
for them. In addition to establishing the validity of the
constructive trust theory in this context, this case
established new Maryland law on numerous difficult evidentiary
questions involving declarations against interest, past
recollection recorded, admissions and attorney-client
privilege. After years of discovery and trial. Judge Williams
granted judgment for the State. In addition to my work at
trial and pre-trial, I wrote the entire brief for the State
and argued the case on appeal; the taxpayers filed a separate
brief and argued for a very short period. The Court of
Special Appeals affirmed in a lengthy opinion, the Court of
Appeals denied certiorari, and Agnew paid the judgment.
a. 1980 - 1982.
b. Judge Bruce Williams
Circuit Court for Anne Arundel County
c. Counsel for taxpayers: Co-counsel:
David L. Scull Michael Millemann
8401 Connecticut Avenue 13009 Bottom Road
Chevy Chase, Maryland Hydes, Maryland
(301) 951-0100 (410) 706-8340
- 15 -
970
Opposing counsel:
T. Rogers Harrison
Jefferson Building
Suite 300
105 W. Chesapeake Avenue
Towson, Maryland
(410) 828-1335
2. Anderson v. Morris. 636 F.2d 55 (4th Cir. 1980)
and 500 F.Supp. 1095 (D.Md. 1980) vacated and remanded, 658
F.2d 246 (4th Cir. 1981). Both in the trial court and on
appeal, I, with co-counsel, represented the State
Administrator of Elections, Hillard Morris, and various other
state officials in this challenge to the constitutionality of
a Maryland filing deadline for independent candidates.
Congressman John Anderson, after running for seventeen months
as a Republican presidential candidate in numerous primary
elections, decided to become an independent candidate. The
deadline by which candidates must file a certificate of
candidacy and necessary petition signatures had passed in six
states - including Maryland. It was critical to Mr.
Anderson's independent candidacy that he appear as a candidate
on the ballots of all fifty states. Accordingly, he brought
a S 1983 action in each state with an early filing deadline,
asserting that the state statute violated the First and
Fourteenth Amendments. Maryland's statute, like that of the
other five states, was ultimately declared unconstitutional by
a district court. That decision was affirmed by the Fourth
Circuit. 636 F.2d 55 (1980).
Mr. Anderson's lawyers then requested $80,000+ in
attorneys' fees, which we vigorously opposed. The district
court found only a $10,000 fee was warranted, 500 F.Supp. 1075
(1980) but the Fourth Circuit reversed, 688 F.2d 246 (1981);
the fee dispute was ultimately settled at appreciably less
than the amount requested. On the merits, I did approximately
half of the work on this case in the trial and appellate
courts. On the attorney's fees issue, I did most of the work
in both the trial and appellate courts.
a. Spring, 1980 - Fall, 1981.
b. Judge Joseph Young
United States District Court for the District of
Maryland
c. Co-counsel:
Robert A. Zarnoch
Counsel to the General Assembly
90 State Circle
Room 104
Annapolis, Maryland 21401
(410) 841-3889
- 16 -
971
Opposing counsel:
Henry R. Lord
Piper 6 Marbury
100 Charles Center South
36 South Charles Street
Baltimore, Maryland 21201
(410) 539-2530
3. Consumer Protection Division v. Consumer Publishing
Co. . 304 Md. 731, 501 A. 2d 48 (1985). The Consumer Protection
Division of the Maryland Attorney General's Office found that
the advertisements of a diet pill company. Consumer Publishing
Co., were false and misleading in violation of Maryland's
Consumer Protection Act (similar to FTC Act) and ordered the
company to cease such advertisements and pay restitution to
injured consumers. The company appealed and the Circuit Court
for Baltimore City vacated this order, finding, inter alia,
the company's constitutional rights under the First and
Fourteenth Amendments were violated by the order, the Consumer
Protection Division engaged in selective enforcement, the
Division improperly tried to adjudicate where it should have
issued a regulation, and the Attorney General of Maryland
poisoned the administrative proceedings, for his own political
gain, by issuing an inflammatory press release. I did not
handle any portion of the case prior to issuance of the trial
court's opinion and order. At that point, the Attorney
General asked me to prepare a petition for certiorari and
represent the Consumer Protection Division on appeal, which I
did. The Court of Appeals granted certiorari and reversed the
trial court in all respects. The case was one of the earliest
Consumer Protection Division enforcement cases and virtually
established that Division's powers. Moreover, in it we
managed to persuade the Court of Appeals to permit the
Division to appeal, in spite of a long established state
administrative law doctrine that an agency could not appeal
from a trial court reversal of its decision; this ultimately
led to an amendment of the State's administrative procedure
act.
a. 1984 - 1985.
b. Judge Thomas Ward
Circuit Court for Baltimore City
c. Opposing counsel:
Henry R. Lord
Piper & Marbury
100 Charles Center South
36 South Charles Street
Baltimore, Maryland 21201
(410) 539-2530
- 17 -
972
4. In re Legislative Districting. 299 Md. 658, 475 A. 2d
428 (1984) • I was lead counsel in these ten cases, heading a
five person state team, in defending the 1982 legislative
districting plan. These cases were consolidated for trial
before Judge Albert Menchine, serving as a special master for
the Court of Appeals, which, under the Maryland Constitution,
had original jurisdiction over such challenges. The
plaintiffs challenged the constitutionality of the State's
legislative districting plan on numerous grounds, e.g. . racial
discrimination, failure to give due regard to political
subdivisions, unlawful favoring of incumbents and lack of
compactness. Judge Menchine upheld the plan except for two
districts in Baltimore City. All plaintiffs appealed. The
Court of Appeals found the plan constitutional in all
respects, even those disapproved by Judge Menchine; it issued
a per curiam order in 1982, immediately after argument, and a
published opinion explaining that order in 1984. I led the
effort before the Master, wrote substantial portions of the
memoranda before him and the briefs in the appellate court,
and presented a substantial amount of the argument in both
forums .
a. February, 1982 - June, 1982.
b. Judge Albert Menchine
Retired from Court of Special Appeals (sitting as a
Special Master)
c. Principal co-counsel:
Robert A. Zarnoch
Counsel for the General Assembly
90 State Circle
Room 104
Annapolis, Maryland 21401
(410) 841-3889
d. Principal opposing counsel:
M. Albert Figinski
Weinberg & Green
100 South Charles Street
Baltimore, Maryland 21201
(410) 332-8634
Roger W. Titus
Venable, Baetjer & Howard
Suite 500
1 Church Street
Rockville, Maryland 20850
(301) 217-5600
- 18 -
973
5. Mercantile-Safe Deposit & Trust v. Baltimore County.
309 Md, 668, 526 A. 2d 591 (1987). The trial court held that
the bank had wrongfully dishonored a draft, presented pursuant
to a letter of credit. Another law firm handled the case at
trial; after losing there, the bank. Mercantile Safe-Depas'it
& Trust Co., asked my firm to represent it on appeal. I
prepared the petition for certiorari, which the Court of
Appeals granted. I then briefed and argued the case on
appeal. The appellate court reversed holding that a
beneficiary's demand for payment must comply strictly, rather
than substantially, with the terms of the letter of credit.
The case was extremely important to the commercial community
because it established, for the first time, the strict
compliance test in Maryland; the holding has, I understand,
been discussed and pr?.ised in periodicals in the field.
a. 1986 - 1987.
b. Judge Edward A. DeWaters
Circuit Court for Baltimore County
c. Opposing counsel:
Michael J. McMahon
302 Five Farms Lane
Lutherville, Maryland 21093
(410) 494-4420
6. Oilman v. Toll. 516 F.Supp. 1196 (D.Md. 1981),
affld, 704 F.2d 139 (4th Cir. 1983). I was co-counsel at
trial in this case, representing the President of the
University of Maryland, John Toll, and other officers of the
University. We tried the case for four weeks, before Chief
Judge Harvey, in the United States District Court for the
District of Maryland. Oilman, a Marxist, contended that the
University of Maryland unlawfully discriminated against him by
refusing, because of his political beliefs, to accept a search
committee's recommendation that he be appointed Chairman of
the Government Department. Oilman brought suit under 42
U.S.C. S 1983 and asked for appointment to the position, back
pay, substantial damages, and attorneys fees. The case was
important to the State for its precedential and psychological
value; it was a cause celebre at the time. Refusal to appoint
Prof. Oilman was one of President Toll's first acts on
becoming president of the University and he believed that
prevailing in the case was crucial to a successful term as
president. Judge Harvey, in a lengthy and well reasoned
opinion, found that there was no improper motivation in the
failure to select Oilman and granted judgment to defendants.
516 F. Supp. 1196. Oilman appealed and the case was affirmed
by the Fourth Circuit. 704 F.2d 139. In addition to my work
at trial, I wrote the vast bulk of the appellate brief, but
did not argue the case on appeal.
- 19 -
974
a. 1981 - 1983.
b. Judge Alexander Harvey, II
United States District Court for the District
of Maryland
c. Co-counsel for Toll:
Paul F. Strain
Venable, Baetjer & Howard
2 Hopkins Plaza
1800 Mercantile Bank & Trust Building
Baltimore, Maryland 21201
(410) 244-7400
Opposing Counsel:
David Bonderman
Richard Ewing
Arnold & Porter
Thurman Arnold Building
1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036-6885
(202) 872-6700
7. Rejqh v. Schleiqh. 595 F.Supp. 1535 (D.Md. 1984),
vacated and remanded. 784 F.2d 1191 (4th Cir.), cert, denied.
479 U.S. 847 (1986). Judgment debtors brought suit
challenging the constitutionality of a rule of the Maryland
District Court (not federal court - but Maryland's equivalent
to a small claims court) governing postjudgment attachment.
The district court held the rule failed to provide a judgment
debtor adequate notice of available claims of exemption and to
assure resolution of such claims within a reasonable time. I
was not involved in the case until the district court issued
its opinion and order. State judges and the State Rules
Committee were extremely upset by this result because it meant
that complicated procedures would have to be imposed on the
"small claims" courts, without any seeming need or benefit.
It also meant that a rule adopted by the Court of Appeals, at
the recommendation of the Rules Committee, was, only months
later, held unconstitutional by a federal court. I briefed
and argued the case on appeal, on behalf of Charles Schleigh
and other State officials. There was a split in the circuits
on the issues raised in the case and a legitimate position on
both sides. We prevailed in the Fourth Circuit, however, and
the district court's judgment was vacated. I became very
interested in the issues raised in the case and co-authored a
law review article discussing the problems presented by such
rules. See Motz and Baida, "The Due Process Rights of Post
Judgment Debtors and Child Support Obligors," 45 Md. L. Rev.
61 (1986) (attached in answer to question 12) .
- 20 -
975
a. 1985 - 1986.
b. Judge James R. Miller
United States District Court
for the District of Maryland
c. Opposing counsel:
Elizabeth Renuart
714 E. Pratt Street
Baltimore, Maryland 21202
(410) 539-5350
8. Secretary of State of Maryland v. Joseph H. Munson
Co.. Inc.. 467 U.S. 947, 104 S.Ct. 2839, 81 L.Ed. 2d 786
(1984) . In this case a trial court upheld the
constitutionality of a Maryland statute imposing a percentage
limitation on the amount a charity could pay for fundraising
expenses; the intermediate appellate court affirmed.
Maryland's highest court, however, reversed and held the
statute violated the First Amendment. I did not personally
handle the case in any of the State court proceedings. Some
alleged charities were spending as much as 90% on fundraising
expenses and the Secretary of the State believed the statute
was extremely important to effective regulation of charities
and so I was asked to try to obtain review in the Supreme
Court and represent the Secretary of State there. I prepared
the petition for certoriari; the Court granted certoriari.
Then I wrote, in substantial part, the Supreme Court briefs
and argued the case in that Court in October, 1983. Eight
months later the Court issued its opinion, affirming the Court
of Appeals and finding the statute unconstitutional by a five
to four vote.
a. 1983 - 1984.
b. Judge Eugene Lerner
Circuit Court for Anne Arundel County
c. Counsel for the State below:
James G. Klair
Administrative Law Judge
10753 Falls Road
Lutherville, Maryland
(410) 321-3993
Opposing Counsel:
Yale L. Goldberg
Suite 900 N
4550 Montgomery Avenue
Bethesda, Maryland 20814
(301) 718-8860
- 21 -
976
9. State of Maryland, ex. rel. Attorney General v.
Burning Tree Club. Inc.. 301 Md. 9, 481 A. 2d 785 (1984). On
behalf of the State and the Attorney General, with co-couns€l,
I filed a petition for declaratory judgment in the circuit
court challenging the constitutionality of a Maryland statute
that conferred preferential property tax treatment on country
clubs. The statute granted a country club a lower tax
assessment if it agreed to preserve open space and to refrain
from engaging in discrimination in its guest and membership
policies, except that with regard to the latter, it permitted
a club to "serye or benefit members of a single sex." On
behalf of the State and Attorney General, we asserted that the
provision violated the Maryland Equal Rights Amendment and
equal protection guarantees in the Maryland Constitution. The
country club maintained that the State and Attorney General
had no right to challenge the constitutionality of a State
statute. The trial court agreed and the Court of Appeals
affirmed. We lost this battle, but ultimately won the war
when several citizens, who we assisted, later persuaded the
court that the statute was unconstitutional. Burning Tree
Club. Inc. v. Bainum. 305 Md. 53, 507 A. 2d 817 (1985). I did
approximately half of the work on this case at trial and on
appeal.
a. 1984 - 1985.
b. Judge Calvin R. Sanders
Circuit Court for Montgomery County
c. Co-counsel:
Robert A. Zarnoch
Counsel to the General Assembly
90 State Circle
Room 104
Annapolis, Maryland 21401
(410) 841-3889
Opposing counsel:
Benjamin R. Civiletti
Venable, Baetjer & Howard
2 Hopkins Plaza
1800 Mercantile Bank & Trust Building
Baltimore, Maryland 21201
(410) 244-7400
10. Stone V. University of Maryland Medical System
Corp. . 855 F.2d 167 and 855 F.2d 178 (4th Cir. 1988), on
certification. The Baltimore Sun Co. v. University of Maryland
Medical System. 321 Md. 659, 584 A. 2d 683 (1991). I
represented the University of Maryland Medical System Corp.
- 22 -
977
(the hospital) , a private corporation, and certain of its
officers who, with the University of Maryland Medical School
and some of its officers, represented by the Attorney
General's Office, were sued by Dr. Harlan Stone. In 198$,
several highly publicized malpractice actions were fiiTed
against the hospital, other doctors, and Stone, who, at that
time, was Chief of the Division of General Surgery at the
hospital and a Professor of Surgery at the medical school.
After an internal and external peer review. Stone, without a
lawyer, met with the individual defendants, some of whom were
in-house counsel, and then signed short letters resigning his
positions at the hospital and medical school. Five months
later, he brought this S 1983 action, asserting that
defendants had forced him to resign in violation of his due
process rights. We engaged in arduous discovery and
eventually obtained summary judgment in the district court;
the Fourth Circuit affirmed in a scholarly opinion. 855 F.2d
167.
During the litigation, the parties had jointly requested
that the entire record be sealed; the district court granted
that request, but without giving notice or making any
findings. The Fourth Circuit remanded with instructions that
the trial court give the required notice and opportunity for
a hearing prior to issuing any seal order and make the
required findings justifying the order. 855 F.2d 178. On
remand, the defendants agreed that most portions of the file
should be public but requested that certain exhibits be kept
confidential. The district court, after giving notice, etc.,
did precisely as the defendants requested. The Baltimore Sun
then appealed. After hearing argument, the Fourth Circuit
certified the question of whether a Maryland statute relied on
by the district court "bars press access to the records at
issue in this case." The Court of Appeals held it did not,
321 Md. 659, but three members of the seven member court
specially concurred stating that the statute did express a
compelling governmental interest in keeping medical records
confidential. The Fourth Circuit ultimately held, apparently
in an unreported opinion, that the records could not be
sealed.
Both aspects of the case are of some significance. On
the merits, the case provided the Fourth Circuit with the
opportunity to clarify the law with regard to substantive and
procedural due process rights in employment situations. The
principles established in the Court of Appeals' decision in
regard to the interests in protecting confidentiality of
medical records were important and have, I believe, been
followed as a guide in forming legislation in other states.
I did approximately half of the work on the case on the merits
and most of the work on the seal order issue.
- 23 -
978
a. 1987 - 1991.
b. Judge John Hargrove
United States District Court for
the District of Maryland
c. Co-counsel:
Ralph S. Tyler
Deputy Attorney General
200 St. Paul Place
Baltimore, Maryland 21202
(410) 576-6342
Opposing counsel on the merits
(i.e. . Dr. Stone's counsel):
N. Roy Grutman
Grutman, Greene & Humphrey
505 Park Avenue
New York, New York 10022-1155
(212) 888-1900
Opposing counsel on the seal order
(i.e. . Counsel for the Sunpapers)
Mary Craig
Doyle & Craig, P. A.
Suite 1910
25 South Charles Street
Baltimore, Maryland 21201
(410) 332-6520
19. Legal Activities; Describe the most significant legal
activities you have pursued, including significant litigation
which did not progress to trial or legal matters that did not
involve litigation. Describe the nature of your participation
in this question, please omit any information protected by the
attorney-client privilege (unless the privilege has been
waived.)
My most significant non-litigation related experience as
a practicing lawyer was the opportunity to work on the
Congress ionally created fifteen member Federal Courts Study
Committee. Work with Committee members, who included Senators
Heflin and Grassley and Congressmen Kastenmeir and Morehead,
- 24 -
979
as well as some very distinguished judges, professors, and
practicing lawyers, and travelling around the country to
obtain the views of the 200+ persons who testified at hearings
before us was an incredible education for me. I not only
learned a great deal about the problems, workings, and talents
of the federal courts, but I also learned much about the
diversity of our country and the challenges that diversity
creates for the federal courts.
My years as an appellate judge have been probably my
single most significant legal activity. Service as an
appellate judge is something I have aspired to ever since I
gave my first appellate argument, more than twenty years ago.
Being an appellate judge has been one of those rare life
experiences in which reality exceeds expectations. I have
worked harder than ever before in my life, but with a real
sense that I am contributing to the public good, that the
clearer, more intelligent, more intellectually honest I can be
in my opinions, the better the law will ultimately be.
- 25 -
980
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1. List sources, amounts and dates of all anticipated receipts
from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive
from previous business relationships, professional services,
firm memberships, former employers, clients, or customers.
Please describe the arrangements you have made to be
compensated in the future for any financial or business
interest.
I received all deferred income, etc. from my former law firm
two years ago. That firm, which I left in 1991 to become a
judge, has since been dissolved. It had a pension plan; my
assets in the plan are valued at approximately $60,000.
2. Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the categories
of litigation and financial arrangements that are likely to
present potential conf licts-of-interest during your initial
service in the position to which you have been nominated.
I do not anticipate any conflicts of interest, except, of
course, I would not sit on any cases in which husband had been
involved. I will continue to look for guidance and follow the
Code of Judicial Conduct in determining if a case presents any
conflicts of interest.
3. Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during your
service with the court? If so, explain.
No.
4. List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more. (If you prefer to do so,
copies of the financial disclosure report, required by the
Ethics in Government Act of 1978, may be substituted here.)
Attached please find a copy of the financial disclosure report
required by the Ethics in Government Act of 1978.
5. Please complete the attached financial net worth statement in
detail. (Add schedules as called for).
- 26 -
981
Attached please find a copy of my financial net worth
statement.
\
Have you ever held a position or played a role in a political
campaign? If so, please identify the particulars of the
campaign, including the candidate, dates of the campaign, your
title and responsibilities.
I was Vice Chairman of the Committee to re-elect the Sitting
Judges of the Circuit Court for Baltimore City. The circuit
court judges (trial judges) are appointed by the Governor and
then must run in an election against anyone who wishes to file
and run against them. I worked on the Committee to Re-elect
.Vudges Ellen Heller, Roger Brown, and John Prevas - I believe
it was the 1986 election. I helped to brainstorm ideas;
ultimately, the judges ran unopposed.
- 27 -
982
lev. 1/'1
FINANCIAL DISCLOSURE REPORT
(5 u.s.t.*. *pp. 6. I6i IfV})
1. Person Reporting (Last r^ame, first, middle initial)
H0I2, JOHN r. U.S. oisim
2. Court or Organization
:l COURI ■ KAIiTLtHD
3. Date of tepoi
n
5/14/93 !
I
4. title (Article Ml judges. indicate active or
?enior status; nagistrate judges indicate
ul I- or part- time)
U.S. OISIRICI JUDGE
5. Report Type (check appropriate type)
Nonination, Date / /
Initial X AnnaW? Final
6. Reporting Period
1992
7. Chanters or Office Address
U.S. COURTHOUSE • ROOM 510
101 UEST lOHSARO SIRCEI
BALTIMORE. HARTLAHO 21201
IMPORTANT NOTES: The inslrucllons accompanying Ihis form must be followed. Complcle all pans,
checking ihe NONE box for each section where you have no reporlabic informalioo. Sign oo lasl page.
L POSITIONS. (Rcpotlingindixidualonly, sec pp. 7-8 of Inslrucllons.)
POSITION NAME OF ORGANIZATION/ENTITY
NONE (Uo reportable positions)
n
Sheppard t Enoch Pratt Hospital
II. AGREEMENTS. (Reporting individual only; see pp. 8-9 of Inslrucllons.)
DATE PARTIES AND TERMS
Z I NONE (Ho reportable agreeinents)
(Venable, Baetjer an(3 Howar<3 pension plan previously
reported was distributeiJ and securities were purchased
with its proceeds - see schedule VII)
III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 9-U of Inslniaioos.)
SOURCE AND TYPE
.DATE,
< Honoraria only)
□
GROSS INCOME
(yours, nsi spouse sj
NONE (Ho reportable non- irrvestaent incoi«e)
983
rilUNCIU OISCIOSUKE REPOII (conl-d)
■ of Person Reporting
J0«« I.
0«te o( teport
5/14/93
IV. REIMBURSEMENTS and GIFTS - transportation, lodging, Tood, entertainment. ^
(Includes these lo spouse and dependent ehildrcn; use the purcnlhelicals *(S)* and '(DC)' to indicate reportable '
reimbursements and gifts received by spouse and dependent children, respectively. See pp. 12-14 of Instructions.)
SOURCE DESCRIPTION
Q
NONE (No such rcportabte reiatxjrscatcnts or gifts)
V. OTHER GIFTS. (includes those to spouse and dependent children; use the parentheticals "(S)' and '(DC)' lo
indicate other gifts received by spouse and dependent children, respectively. See pp. 15-16 of Instructions.)
SOURCE DESCRIPTION VALUE
Q
NOME (No such rcportabte gifts)
VI. LIABILITIES. (Includes those of spotise and depeodeni children; indicate where applicable, person responsible
for liability by using the paj^cnlbelical '(S)' for separate liabUiiy of the spouse, *(J)' for joint liability of reporting
individual and spouse, and '(IK^)* for liab'dity of a dependent child. See pp. 16-17 of Instruaions.)
CREDITOR DESCRIPTION VALUE CODE*
NONE (No reportable ttabiljties)
• VM.UE (XOES:
I ^6%"- 15^,000
5 • «ifl?a,--'«:888.ooo
'piiSt'^.L.imaoo
H c $100,001 to tJSO.OOO
984
FINAIICI/U. OlSClOSUHe (CPailT (cont'd)
■ o1 Person Reporting
jom r.
I>»te o( Deport
3/14/93
Vir. Page I INVESTMENTS and TRUSTS - income, value, transactions (Includes those of spouse..:
and dependent children; See pp. 18.26 of ln.struclions.)
A.
Deccription of Assets
(inclucnng trust assets)
Indicate where #pplic*ble, owner, of,
tK« asset byusthj f - Mfenthctical
fs*a^rr5^65'§4?n5Sf?AiX'
fl»ce "(K)" •Iter e*ch «»et
exCMpt troai prior disclosure.
Income
during
reporting
period
Gross 'value
at end. of
reporting
period
0.
Transactions during reportir^ period
<1)
<»-H)
(2)
I^'
div.,
rent 6r
int.)
(1)
(ip)
(2)
Value
(O-W)
rederoi
tion)
If rwt exeopt froa disclosure
(2)
Date:
Kontfi-
Oar
(J)
(J-P)
(«)
ESie"'
(A K)
Identity of
Ivwr/stller
(It private
transaction)
NOME (Ho reportable
incone, •ssers. or
transactions)
Euon (S>
■
OIV
(
t
iBN(S)
*
OIV
<
t
Keaper Inv. Port. Gov't Plus
(OC)
*
im
J
t
Karytcnd Comjnity Oev.Rand(S>
A
I HI
J
T
Hercantite Safe Deposit - CO.
' (OC,
A
IDT
K
T
REDE
J/15
Mercantile Safe Deposit ■ CD.
' (lU)
A
INT
1
t
10
Mercantile Safe Deposit - CO.
11
(l«A-S)
A
UT
J
I
A
IRT
J
T
T. Roue Price. Growth Stock (J)
A
DIV
J
I
U
T. Roue Price - Priatt Reserve
A
IRT
J
I
16
■orden (OC)
A
DIV
J
I
17
•orden (OC)
A
OIV
J
I
18
International Banknote (S)
A
OIV
J
T
«E0£
' iSSTEif'Si^f^i fai5°88i»fo'fa.o<» fmo?8i,'?.*iia?ooo ^3^o3»WM^in».ooo ll5lfS«{hiS {l^cTooo
' rii?cSf*ai 1 oj) i31?o?88iVJ58o.ooo ^m?81iV«:8!B.oooi3^°t°?iaiM.'886% •""~.ooi .. s«o,ooo
» ?li?c5f!''?3,'^"^= S=SSa*iitie JSTfU'"' """""" 5^l5?Sf?5 I^CsVMartet
985
riHMlCIAt OISCIOSU»E tCPO«T (cont'd)
■ of Person icpertinf
JOHH r.
Date of trpori
5/14/93
VII. Page 2 INVESTMENTS and
and Jcpcndcnl children; Sec pp
TRUSTS - income, value, Iransaclions
18-26 of I nsl ructions.)
(Includes thoic of spouse .!.-
a*tcr\otion'o1 Assets
(includir<9 trust assets)
tCe •SMt^.usifiS the njf»mK»tic»l
•<J)rJor.i4int ovwrskYp of rejort-
<no tndiviaual and spouse . "(Sj^ «or
scSarate oanershio Iff spouse ."(DC)*
laTemriirip by UepcnaenI cfcild.
Mace "(X)- after eacti asset
ucapl frna prior disclosure.
IncoM
during
Cross value
at end. of
report ing
period
D. i
Transactions during reportir^ period
i
1
1
(1)
(»-«)
(2)
div.,
rent Or
int.)
<1)
(J-P)
(2)
Value
He^odJ
(0-M)
tion)
If not cxeupt froa disclosure |
DaU?
(3)
«)
(A-*)
Identity of
twer/jeller
It private
ransaction)
NONE (Ho reportable
irKone. assets, or
transactions)
1
19
Mercantile Safe Deposit Co.
'
'" CO. <I«A)
A
im
J
t
!
I. loue Price - Inll. Stock(J)
A
DIV
J
t
i
1. «o»« Price ■ Ian EicapKJ)
C
im
I
I
i
23
Alei Iroun <S>
A
DIV
J
t
1
1
** I. lOMC Price <S)
A
DIV
J
I
i
2S
Sara lee <S>
A
DIV
J
I
26
Hictiolas Fund (J)
A
OIV
J
I
" Kicholas f«J <0C)
A
otv
1
I
Nicholas Fund (DO
A
OIV
J
T
t. tone Price Equity Incoac
30
Fuid (J)
A
DIV
J
I
T. tone Price Equity Incone
Finl (DC)
A
OIV
J
I
T. towe Price Ec^uity Incoae
it
Fmt (DC)
A
DIV
J
I
1. loue Price-Neu Horizons (J)
A
DIV
J
f
it
1. loue Price Int'l (orxl (DC)
A
IDT
J
1
' iSTJifr-Bi^fftj t:H5?88,»J.'n8.«oo f3i«?liJ,'?.»iia?ooo S««J?1
O?M'i?%.O0O ii3lf?'}hSil?688?000
Mli^cSf^i » 03, i31l6?88,VS8o.««, a}i«?8i,'?.n?:ii88.oook32?t'?US!18i!6?88o "="«'.<«"•«»•'«»
^ ?lircST!'t3)'°**= gJSS'ijfie I'^y" «'•" """ e^JtSSS .^sh/Harte.
986
rituUKIM. OISClOSU«e «E(>0«t (cont'd)
Naflw of Person Reporting
Oil. JONii r.
Date o» teport
5/14/93
VII. Page 3 INVESTMENTS and TRUSTS - income, value, JransacJions (Includes those of spouse ^7^-
and dependent ehildren; Sec pp. 18-26 of Inslrudions.)
A.
Description of Assets
(inclucnog trust •sects)
Indicate where opplicable, owper.:f
tKe ts^et by iwihg the pa^entneticil
l>l»ce "(K)" etter etch Mset
cfte«ipt froa prior disclosure.
B.
Incone
during
reporting
period
C.
Cross value
at end. of
reporting
period
0.
Transactions during reporting period
(1)
(«-H)
(2)
Jrpt
Ce.g-.
div.,
rent or
int.)
(I)
(J-P)
(2)
Value
HeJ5jdJ
(O-U)
J1)
If not excMpt fro* disclosure |
(2)
Date:
Month-
Day
(3)
(J-P)
(4)
(A-N)
Identity of
fwyer/jeller
(il private
transaction)
NOME (Ho reportable
income, assets, or
transactions)
T. Dowe Price Int'l Bond (DC)
A
lUT
J
T
38
PutnaA £nerging Growth ftaid
*
DIV
K
T
39
Putnam Einergir^g Growth ft«d
to
(S)
«
OIV
(
T
Pru-Bache Hisiicipal Series
(2
(«) (DC)
A
INT
J
T
^ Maryland Nat'l Bank - CD. (J)
A
INT
J
T
44
T. «owe Price - Growth Stock
A
OIV
J
I
I. (owe Price - Growth Stock
47
(DC)
A
OIV
J
I
45
Howard County, Karyland Bnds(J)
A
INT
(
I
T. Howe Price - Int'l 8onds(J)
B
INT
J
T
SO
PruBache Money iiarket (J)
A
INT
J
T
51
T. Rowe Price - Tax Exenpt
52
(OC)
B
INT
C
T
Hd. Con. Oev. Bond (OC)
A
INT
J
T
54
Md. Health flood (DC)
A
INT
i
T
' |ge-Sif'S,=naj f:ll5°88,°fo'R3.ooo faio°8J,'?.'{i?8°ooo mW!i
o^Mn?%o.ooo 8-:Jlf?°!hlStlWooo
' V^clr^l\ » D3) imcW^o'Uio.OOO f^nlcWVim.OOO t3^°*°?iaiM18&)?880 "=*""'■'»' " *"°'~°
' r?irc5f""£?)'"^= 8:S§a'i:fie f^ssjj"'""""""" s^ijTsna .=cash/M.rket
987
flNAIICUl OISCIOSURC KPVtt (cont'd)
I
Hmc of Person Reporting
lit, JOm F.
B«<e of leport
5/14/93
Vil. Page 4 INVESTMENTS and TRUSTS -income, value. Iransacliuns (Includes (hose oT spouse
and dcpcndcnl children; Sec pp. 18-26 of Instructions.)
Qescription'of Assets
(incluoir^ (rust assets)
Indicate lAere »pplif»ble, o«per.of.
the asset by.usif^ the w^ent^ellca^
flace '(X)- after each asset
caeapt froM prior disclosure.
a.
Incoae
during
report ing
period
Cross'valu*
at end.ot
D.
Transaclionx durlii« reporting period
(l>
(AH)
<?)
m-
rent br
int.)
CI)
(S?p)
<i)
Value
^jJJodJ
(0-U)
If not eaenpl (r<a disclosure |
OaJI]
Month
Day
<3)
<j-p)
fh) Hinrair?^,
NONE (No reportable
trxoNie, assets, or
transactions)
leiaco (S)
OIV
S6
Univ. of m (and <0C)
IHI
$7
Univ of to Bond (S)
INT
Univ. of to Bond (S)
INI
leatly Parking IP (J)
DIV
60
■eatty Parking IP (DC)
DIV
Icatty Parking IP (DC)
DIV
«2
Caa<ibell Soi<> (S)
OIV
a
•e. Health Sond (S)
OIV
•O. Health Bond (DC)
INT
6S
•O. Health Bortd (DC)
INT
66
T. Koue Price - Hev Asia (J)
OIV
T. touc Price - New Asia (DC)
OIV
6a
1. Rmw Price • New Asia (DC)
OIV
69
AIM-Ueingarten (S-I«A)
DIV
n
AIN-Ueingarten (DC)
OIV
71
AIN-Weingarten (DC)
OIV
7i
Putnas Health (DC)
OIV
' {S?Eif'S,=r^5 f:iU?88,°J.'l?8.ooo f'l}6"8J,'?o*lia?ooo EmoJ?Jo5°,ri??iioo.ooo S^fJ^Jh^S il Wooo
' rsi?cSff«ci t »3, i!31?«°ii8,°{.'l!8«.ooo S:H(;««8i,'?.'l?:888.ooo i^iV^J^W.mio "-»'«'•«" " ^^'-"^
' ?Si?c5f!''?^)*^°^= giSS'iifie ?3?i;Ji'"' "'•'* """' SJfl?SSJ t^sh/Marke,
988
FIIIAHCUl OISCIOSUDE aCPODI (cont'd)
Hane of Person Reporting
1012, JOm f.
Ojte of Report
5/14/93
VII. Page 5 INVESTMENTS and
and dcpcndcnl children; Sec pp
TRUSTS - income, value, Jransaclions
18-26 of Instructions.)
(Includes those of spouse ..
Oescription'of Assets
(including trust assets)
IrtJicate where applicable, owper.of,
the asset by ust(>5 the pafenthet icat
fs'a;;jra?5'6j'8e&^?sitr'
PlKe ■<)()■• after e«h asset
cjceapt from prior disclosure.
Income
during
Gross value
at end of
report ing
period
Transact
ions dur
0.
ing reporting period
(1)
(»-H)
12}
ir,..
div.,
rent br
int.)
<1)
Value
Code
(J-P)
(2)
Value
Kethwfl
(0-W)
p)
thrill I.
tion)
If not exeopt fron disclosure
Hontfi-
Oay
(3)
(J-P)
(4)
eSie"'
(A-K)
Identity of
buyer/seller
(11 private
transaction)
NONE (No reportable
inconw! assets, or
transactions)
Putnam Kealth (OC)
OIV
U.S. Govt. Bonds
IDT
BUT
^
■c- <?^<
^^nu
«///
tellsouth (J)
DIV
Cen'l Elec <J>
OIV
Quaker Oats <J)
OIV
78
f.e. Cty Bond (OC)
UT
P.O. Cty Bond (OC)
INT
J
Gillette (OC)
OIV
Gillette (OC)
OIV
Pepsico (OC)
OIV
Si
Pepsico (OC)
OIV
urn, mc. (S)
OIV
BUT
10/2
85
Oi^ont OeNemxjr 1 Co. (J)
OIV
BUT
5/22
66
IC(E Energy Corp. (J)
OIV
BUT
5/22
8?
Long Island Ltg. Co. (J)
OIV
BUT
5/22
88
K>. State Cen't (J)
im
BUT
11/3
89
HO. State loc. fact. (J)
INI
BUT
5/20
90
Montgomery Coi#>ty Cen'l (J)
INI
BUT
7/9
' !grEi?"?,'rt?j f:ll5°88,°{,'J58.ooo fmo°8ii'?o*ii^8"ooo E3y?Jorti^?%o.ooo S^S'ofJ^ihiS H?orooo
' nie"'c^ai i oj) i!S15o?88,''fo'n8o.aoo g:H5fi°8i,'?on?;888.ooo tai?t''?ia;iM:88o?88o "=""'■"' " •"''•~°
' r!i^cSf:-8^,'°*'= g=SegfJ5fie SSSU"" "'"' °""" S:fnTIS?a T=Cash/Harlet
989
riMIKIU DISClOSUIt ICI>Otl (cont'd)
of Person Reporting
JOHN f.
0»t« o« Hcport
5/14/93
VII. Paf^ 6 INVESTMENTS and TRUSTS - income, value, Iransaclions (Includes those of spouse ;
and dcpcndcnl children; Sec pp. 18-26 of I nM ructions.)
Description'of Assets
(incTuoing trust assets)
Indicate where •pplicable, otmr.of.
rikc asset w using the pa^cntKetical
:n>:Jor,gint_^r»h^ of report-
ntct "(X)" ofter *»cti.*stet
CKOipt iroN prior disclosure.
■ .
Income
during
Cross'value
at end of
repofting
period
0.
Transactions during reporting period
(1)
(A?«>
(2)
rent 4r
int.)
(1)
(2>
It-
4'i:.i.
If not eienpt froa disclosure i
DaU!
(3)
"c'iS'
<J-P)
NONE (Ho reportable
income, assets, or
transactions)
Atlantic Energy Inc.
OIV
BUT
3/26
Coca Cola Co.
DIV
BUT
3/26
Merck and Co.
DIV
(UT
3/26
9(
Hotoil Corp.
DIV
euT
3/26
rrvdential Short Tera Global
DIV
tUT
3/26
lexas Utilities Co.
OIV
BUT
3/26
U.S. Treasury Strip Int.
l«T
BUT
3/26
90
2iicig Appreciation Ftfid
A
DIV
BUT
3/26
Mobil Corp. (0C>
DIV
BUT
5/22
100
Mcbil Corp. (0C>
DIV
BUT
5/22
^
101
Potcaae Elec. Power Co. <DC>
DIV
BUT
5/22
102
Potoaac Elec. Power Co. (DC)
DIV
BUT
5/22
103
■PM Inc. Olio (DC)
DIV
BUT
10/09
10«
■PM Inc. (Xiio (DC)
OIV
BUT
10/09
10S
African Express Co. (DC)
DIV
BUT
5/22
106
Aawrican Express Co. (DC)
OIV
BUT
5/22
107
Walt Disney Co. (DC>
DIV
BUT
5/22
106
Walt Disney Co. (DC)
DIV
BUT
5/22
' jss^iJr'si'nsj t3i5?88i«?o'R8.ooo mmrro*hig!ooo inwa.
ol'tJ't^.ooo ii3SlfS«J^5SllWooo
^ rsi?cSf!^i i oj> i!tMfl?88.°?c'n8o.ooo S:|}^?8i,'?on?:888.ooo ^^°t'^iaJ'',!!8!!o?88o "="»»•'«• " »«°-~"
' ?Si?c5!:'??,''**= S^SSa-iitie 5S?ttJ'"' «"" """ Uklt^S^ t-Csh/Mark.t
990
flNANCIAl 0ISCL09JSC MKXI (cont'd)
■lane of Person Reporting
012, JOHN f.
D«te of >cport
5/14/93
VII. Page 7 INVESTMENTS and TRUSTS --income, value, transaclions
and dependent ehildrcn; Sec pp. 18-26 of Inslructions.)
(Includes those of spouse
Oescriptioo'of Assets
(inclucnng trust assets)
H«« "(X)" after jjch asset
cxoipt Irani prior disclosure.
during
repocli^
period
Cross'value
at end of
reportins
period
D.
Transactions during reporting period
(1)
I*")
(2)
rent 4r
int.)
(1)
Value;
Code
(J-P)
(2)
Value
(OU)
buiriiii.
•erger,
redemp-
tion)
If not exenipt from disclosure |
(2)
Date:
Nonth-
Oar
(3)
(j-p)
(«)
fSie"'
<A-H)
Identity of
bwer/seller
(if private
transaction)
NONE <Ko reportable
income, assets, or
transactions)
109
tn. Croup Inc. (OC)
oiv
BUT
5/22
"" fPl Croup Inc. (OC)
DIV
BUT
5/22
Johnson and Johnson (DC)
OIV
Btn
5/22
'" Johnson and Johnson (OC)
DIV
BUT
5/22
'" to. State Transit Aufh. (OC)
IHT
BUT
9/03
"' to. State Transit *uth. (OC)
IHI
BUT
9/03
lis
116
117
iia
ii«
120
121
122
123
124
125
126
' }ge"?if's.^r^> ?ais°88,'fo'c§6.ooo fmo°8ii'?o*Ji^ooo mw.i
io?°tri??8oo.ooo HO^ffMS llWooo
MUe-cSrai . 03, (i5ii5o°88,°f.'f56o.ooo ^H^?8i/?on?:888.ooo^3SI?t"^iaXM:88o% •<-'~.~- '« -».-
' ?ti^c5t"'?3)'~^'= fiiSSa'ilfie JSTSiJ^"' "'•""'"" SaUTilSSS I-Cash/Harle,
991
FINAIKIAl OtSClOSUDE «CI>OIII (conl-d)
o( Person Reporting
JONK F.
Jl»»e-or«iporl
5/14/93
VIII. ADDITIONAL INFORMATION or EXPLANATIONS. (Indicaie pan of Report.)
Line 74 - Purchased evecvlnonth from salary withholding
Lines 91-98 - Purchased from retirement account rolled over from
pension account with former law firm.
992
rlKXIICIAL DISCLOSURE DEPOtl (cont'd)
IX. CERTIFICATION.
Name of Person Reporting
10T2, JOHN f.
Date of Beport
5/14/93
In cornili.nce with the provijions o« 28 U.S.C. 455 tni of Advisory Opinion no. 57 o« the
(UtviMTY Connittee on J«lici.l »ctivitiet, and to the best of m knouledje tt the ti«e .«ter
reetaMble inquiry, I did not perfon. eny «(iudie.tory (uKtion in «ny litij.tioo Airing the
period covered by this report in «hieh I. ay spouse, or m, ninor or dependent children had •
finWKiel interest, (S defined in Canon lC(3>(c>, in the outcaw of such litigation.
I certify that all the inforaation given aliove (including inforMtion pertaining to aiy
tpouM and .inor or depewfcnt children, if any) is accurate, true, and co«plete to the best of
■y tnouledge and belief, and that any information not reported uas withheld because it net
applicable statutory provisions permitting non-disclosure.
I further certify that earned income from outside enployment anj honoraria and the
acceptance of gifts which have been reported are in compliance with the provisions of 5
U.t.C.A. app. 7, 501 et. seq.. 5 U.S.C. 7J5J and Judicial Conference regulations.
tifnature
CHOaMIGI
NOTE: fXi IWIVIOUAL WHO tWAHIClT AMD UllFUlLT fALSlflES 0« fAllS 10 fllE IKIS tEPORt
HAT IE alejECI TO CIVIL AHO CUMUAL SAIICIIOIIS (5 U.S.C. A. APf. 6, T04, AMI 18 U.S.C. 1001.)
rillNC IHSTRUCTIONS:
Mall signed original and 3 additional coptes.to:
.'■S?
'■feVv?*'.*-.?
Judicial Ethics CoiMittce
Adiinistrative Office of the
United States Courts
>;Uashington, O.C. 205M
993
FINANCIAL STATEMENT
NET WORTH
DIANA G. KOTZ
Provide a complete, correnl (inancisi net worth statement which itemizes In detail all assets (iocludin£ bf
accounts. f»al estate, securities, trusts, investments, and other financial holdings) all liabilities (including <;tbi
mortgages, loans, and other financial obligations) of yourself, your spouse, and other Immediate membtT •
your household.
ASSETS
Citli on h«n4 «nd In txnks
U.S. Co»»<nm«M tccuria** — •dd
Uittd »«curiett — Kjd »«htdul« A
Unllittd ucurttin — tdd ttt\»au\*
/^counts and noln r*c«vibl«:
CXj* (rem MitKvn and (ri*ndt
Oil* trem o(h«rs
Doubtful
Rtal *r«t« own*d — 4dd tchtdul* B
Rijl nUI« >no<U<l** r*e*lvtbl«
At/loi ind olhtr p«r»on«l property
Cttfi v«lu(— III* Inturanc*
Oth«r (iKti — Itemlic
FBC&G Pension-value
Assets of Children
(see Schedules C f. D)~
btate yension-value
Tout ttMll
liABIUTIES
Hotn t>Mjtb\* to btr.ks — Mcur*d
Not** ptytbU to b«nla— unt*<ur*d
Notn ptybl* to r«UI)v«t
Nota piyabl* to Mbtre
Afcounts trtd b<lli duo
Unptid Irxsm* t«i
Olh*' unp«ld III and Inttmt
R««l mat* mo>tt((ci p«y*bl*— add
tchcdul* T.
Chattel mortsagri in6 othar llant
pajrtbU
Oth« dabti— Itamlia:
139-
No
No
No
No
No
TTcT
31,300
No
Jifi.
ToUl llabitilic*
Nat worth
ToUl llabllltlm and nt< <»ortl>
1,497.^17 Qfl
1.528.717J0(L
31,300
--I
--l"
--I
--f
00
__l
r
00
CONnNCCNT UABILITICS
CmmAL INrORMATION
A* ondorear. oomakar or guarantor
On laatai or eoiUnctt
Le(jtCtaimi
fioviiion for Tadaral inccma Tax
Othar tpaclal dabt
Ara any aaaati pladged? (Add achad-
ula.)
Ara you dafandant In any tuHi or
l^al actionaf
Hav« you avw ta kan banimpicy?
No
No
-*?0-
994
SCHEDOLE A
LISTED 8ECDRITIE8 - DIAMA O. AMD J. FREDERICK MOTZ
Stocks
300 shares Alex Brown $ 8,850
100 shares Apple Computer 2,238
100 shares Bell South 6,050
100 shares Campbell Soup 3,850
100 shares Dupont 4,650
100 shares Exxon 65,500
100 shares General Electric 9,588
150 shares IBM 7,481
100 shares LGJiE Energy 4,175
100 shares Long Island Lighting 2,725
200 shares T. Howe Price 12,275
100 shares Quaker Oats 6,700
300 shares RPM, Inc. 5,363
100 shares Sara Lee 2,363
100 shares Texaco 6,775
293 shares US Banknote 2,051
Total - Stocks ^50.634
Alex Brown Ltd. Partnership Realty Parking 4,900
Mutual Funds
Aim Weingarten (Diana Motz -IRA) $ 8,368
Fed'l Gov't - F Fund 17,219
Nicholas Fund 19,585
T. Rowe Price - Equity Income 10,580
T. Rowe Price - Growth Stock 6,484
T. Rowe Price - Int'l Bond 18,830
T. Rowe Price - Int'l Stock 13,628
T. Rowe Price - New Asia 17,273
T. Rowe Price - New Horizons 9,827
PutnsuB OTC Emerging Growth 52,448
Total - Mutual Funds " ^^'^^'^^^
Bonds
Howard County $ 9,062
Howard County 9,983
Md. State 11,980
Md. State 10,865
Md. State 16,370
Md. State 10,390
Md. State 5,000
Montgomery County 10,787
University of Maryland 13,611
University of Maryland 6,839
Total - Bonds 1°^ ' ^^7
995
JRA - J, F. MotZ
400 shares Atlantic Energy Inc.
200 shares Coca Cola Co.
GT Investment Funds Inc.
100 shares Georgia Pacific Corp.
Units Government Securities
Equity & Trust Series 6
50 shares Merck
100 shares Mobil
Prudential Utility Fund: Class B
200 Texas Utilities Co.
Zweig Appreciation Fund: Class B
Prudential Moneymart Assets Fund
Total - J. F. MotZ IRA
8,950.00
8,675.00
5,297.18
6,425.00
23,841.14
1,606.25
8,150.00
20,632.78
9,000.00
23,987.79
3,016.00
119.581.14
Grand Total - Listed Securities
554.244.14
996
SCHEDULE B
REAL ESTATE - DIANA Q. AND J. FREDERICK MOTZ
Residence:
Purchase Price:
Purchased From:
Estimate Current
Fair Market Value:
Mortgage
123 St. Dunstan's Road
Baltimore, Maryland
Held as Tenants by the Entirety with John
Frederick Motz
November 1977 - $120,000
Ann and E. DeHitt Battams
$300,000
Provident Savings Bank
8 3/4%
Principal Balance: $31,300
997
flCHEDULB C
CASH AND LISTED SECOItTTIES OF CATHERINE J. MOTZ
Cash
Alexander Brown, Inc.
T. Rowe Price
Prudential
Total Cash
1,793.00
36,698.00
6,664.00
45.155
Stocks
3 00 shares Borden
100 shares Citicorp
100 shares Walt Disney
200 shares FPL Group
100 shares Mobil
200 shares Pepsico
150 shares RPH
Total Stocks
5,325
3,813
3,775
7,875
8,163
7,850
2,681
39.482
Mutual Funds
AIM Equity
Kemper - Govt. Portfolio
National Equity Utilities
Nicholas Fund
Premier State - Municipals
T. Rowe Price-Equity Income
T. Rowe Price - Growth Stock
T. Rowe Price - New Asia
T. Rowe Price - International Bond
Putnam Health
Total Mutual Funds
5,597
18,385
10,249
14,689
10,329
10,097
2,820
17,273
10,031
4,193
103.663
Bonds
Md. State Community
Md. State Health
Md. State Transportation
Prince George's County
Washington County
Total Bonds
5,075
11,981
6,378
7,305
10,313
41.052
Other
Alex Brown Ltd Partnership
Realty Parking
Total
4,955
4.955
GRAND TOTAL
234.307
998
SCHEDDLE D
CASH AKD LISTED SECORITIES OF DAMIEL G. MOTZ
Cash
Alexander Brown, Inc.
T. Rowe Price
Prudential
Total Cash
Stocks
300 shares Borden
100 shares Citicorp
100 shares Walt Disney
200 shares FPL Group
100 shares Mobil
200 shares Pepsico
150 shares RPM
Total Stocks
Mutual Funds
AIM Equity
National Equity
Prudential Municipal Fund
Nicholas Fund
Premier State - Municipals
T. Rowe Price-Equity Income
T. Rowe Price - Growth Stock
T. Rowe Price - New Asia
T. Rowe Price - International Bond
Putnam Health
Total Mutual Funds
Bonds
Md. State Health
Md. State Health
Md. State Transportation
Prince George's County
University of Maryland
Washington County
Total Bonds
Other
Alex Brown Ltd. Partnership
Realty Parking
Total
1,793
22,089
6,500
5,325
3,813
3,775
7,875
8,163
7,850
2,681
5,597
10,249
7,888
14,689
10,329
10,097
2,820
17,273
10,031
4,193
11,981
5,784
6,378
7,305
13,611
10,313
4,955
30.382
39.482
93.166
55.372
4.955
GRAND TOTAL
223.357
999
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence Jjor
professional workload, to find some time to participate in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances and
the amount of time devoted to each.
Over the years, I have worked for and served as a
volunteer in a number of community boards. These include the
YWCA of Greater Baltimore, the Junior League of Baltimore, and
the Union Memorial Hospital. At present, I serve on the Board
of Directors of the Johns Hopkins Hospital and a task force
requested by the Maryland legislature to examine the
feasibility of closing or consolidating the State's mental
institutions. In addition, I try to spend a few hours each
week as a "hands on" volunteer at the Mt. Washington Pediatric
Hospital, playing with and cuddling very sick or abused babies
and toddlers.
While in private practice, from 1986 to 1991, I spent at
least 25% of my time on pro-bono activities. I represented a
number of persons unable to pay for representation. The most
significant of these matters are detailed in response to an
answer in Part I, question 17 b.l. I have also provided free
advice: (1) to countless persons who have sought help in
understanding Maryland's arcane election laws and (2) to
various non-profit institutions on miscellaneous legal
questions, e.g. . how a school can obtain a new kind of
certification from the state, how to obtain tax free status
from the Internal Revenue Service, etc.
When I worked in the Attorney General's Office, there was
an office policy prohibiting pro bono representation (then
thought to be a conflict with representation of State) but
teaching, lecturing, etc. pro bono was permitted.
Accordingly, I made it a rule, which I still follow, to try to
make myself available to lecture, instruct, moot court, etc.
pro bono, any group that asked me. Thus, I have served as a
moot court judge on several occasions, e.g. . last year at the
University of Notre Dame School of Law and the University of
Maryland School of Law and in 1986 for the National
Association of Attorneys General in preparation for the
Supreme Court argunent of the Attorney General of North
Carolina and I have participated in hundreds of formal and
informal talks, panel discussions, conferences, etc. Among
these are the following:
Keynote Address, Mandatory Seminar on Professionalism
for Attorneys Seeking Admission to the Maryland Bar,
December 3, 1993
- 28 -
1000
Moderator, "Nuts and Bolts of Appellate Practice," Program
for Baltimore County Bar Association, October, 1993
Instructor, Judicial Institute, "First Amendment Access
to Courts," September 9, 1993
Panelist, "New Administrative Procedure Act and How It
Affects OAH Practice," June, 1993
Panelist, "Nuts and Bolts of Appellate Practice," Program
for Frederick County Bar Association, Spring 1992
Panelist, Maryland Bar Association, Annual Meeting 1992,
Appellate Moot Court; "Sanctions" (two different
programs . )
Panelist, Maryland Bar Association, Annual Meeting, 1990,
"Appellate Practice" (appellate practice "pointers" - my
portion of the program dealt with brief writing)
Panelist, Maryland Bar Association, January, 1990
Mid-Winter Meeting, "Recent Decisions of the Court of
Appeals" (comment on significant recent decisions - my
part of the program involved constitutional cases)
Instructor, University of Virginia Trial Advocacy
Institute, 1990, 1988 (seven day session each time)
(teaching trial practice - I taught closing argument and
direct and cross examination)
Lecturer, Maryland Institute for Continuing
Professional Education of Lawyers, "Effective Appellate
Practice," May 24, 1988 (appellate practice "pointers" -
my portion dealt with brief writing, appellate argument,
and cert, petitions)
Lecturer, Maryland Institute for Continuing
Professional Education of Lawyers, "Practice Tactics of
Successful Motion Practice," 1987 (my portion dealt with
summary judgment motions)
Instructor, Baltimore City Bar Association, "Federal
Civil Rights Claims," 1986
Panelist, Maryland Bar Association, Annual Meeting -
1985, Section on Delivery of Legal Services, "Use
of Constitutional Claims for Attorneys' Fees in
State Court"
Instructor, Judicial Institute of Maryland, "Civil
Rights Litigation," April 19, 1985 (bringing S 1983
claims in State court)
- 29 -
1001
Panelist, Maryland Bar Association, Annual Meeting -
1984, Section of State and Local Government,
"Distinctions Between State and Federal
Constitutional Law"
Lecturer, Maryland Institute for Continuing
Professional Education of Lawyers, "Injunctive,
Emergency and Expedited Practice - Federal and
State Court Injunctive Practice," December 9, 1983
and December 16, 1983. (my portion dealt with
injunctions) .
The American Bar Association's Commentary to its Code of
Judicial conduct states that it is inappropriate for a judge
to hold membership in any organization that invidiously
discriminates on the basis of race, sex, or religion. Do you
currently belong, or have you belonged, to any organization
which discriminates — through either formal membership
recjuirements or the practical implementation of membership
policies? If so, list, with dates of membership. What you
have done to try to change these policies?
I do not belong and never have belonged to any
discriminatory organization.
3. If there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts? If
so, did it recommend your nomination? Please describe your
experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to
your nomination and interviews in which you participated) .
There is no selection commission in my jurisdiction to
recorjnend candidates for appointment to the Fourth Circuit.
I know very little about the judicial selection process. I
did not know I was under serious consideration for nomination
to the Fourth Circuit until I received a telephone call from
Mr. Bernard Nussbaun informing me that I was and that I would
shortly be sent some forms that should be answered accurately
and fully - and as soon as possible. I completed my written
answers and returned them to the White House Counsel's Office.
Subsequently, I was interviewed by representatives of that
office, and members of the FBI and American Bar Association.
The FBI and ABA conducted investigations of me; after several
weeks, those investigations were completed. On January 27,
1994, Mr. Nussbaum telephoned roe to tell me that President
Clinton had sent my name to the Senate to nominate me for
appointment to the Fourth Circuit.
- 30 -
1002
Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
interpreted as asking how you would rule on such case, issue,
or question? If so, please explain fully. ,-:''
No.
Please discuss your views on the following criticism involving
"judicial activism."
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism that
alleges that the judicial branch has usurped many of the
prerogatives of other branches and levels of government. Some
of the characteristics of this "judicial activism" have been
said to include:
a. A tendency by the judiciary toward problem-solution
rather than grievance-resolution;
b. A tendency by the judiciary to employ the
individual plaintiff as a vehicle for the
imposition of far-reaching orders extending to
broad classes of individuals;
c. A tendency by the judiciary to impose broad,
affirmative duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
e. A tendency by the judiciary to impose itself upon
other institutions in the manner of an
administrator with continuing oversight
responsibilities.
I am not generally a believer in "judicial activism." It
is not the job of the courts to formulate new law. The
legislature is to legislate; the judiciary is, when asked, to
interpret the legislation and, very importantly, to determine
if it is constitutional. Both roles are important but they
are hardly identical. This is, of course, a principle that
provides the bedrock of our democracy. It has generally
worked well for 200 years; it should be followed.
Moreover, a case presents an opportunity to resolve legal
questions within a finite factual situation; a judge should
try to resolve those questions, fully, fairly and with the
greatest intellectual honesty. That often becomes impossible
- 31 -
1003
if one uses the case to pronounce general principles, i.e. .
the issues in the case get lost in the mighty rhetoric and do
not receive the attention they need and deserve. Conversely,
in my experience, the loose dicta that passes for enunciation
of general principles does not really help litigants in futjire
cases. In our system of precedent, only holdings are binding.
A party can, of course, use a similar case to argue by
analogy, but that is possible without any enunciation of
general all-encompassing principles. Moreover, often dicta
simply confuses litigants and less sophisticated lawyers into
following a course, that, ultimately, when given the
opportunity, a court may well find ill conceived.
In summary, being a judge presents enormous challenges
without adding that of administering a school, prison, etc. or
enunciating general policy, which is almost inevitably is
based on little empirical research or knowledge. "Getting it
right," clearly, simply, and intelligently in the individual
case is hard enough; accordingly, this task should be what the
judge concentrates on, not making "new law" or taking over
governmental institutions.
- 32 -
1004
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
Robert Manley Parker
2. Address: List current place of residence and office address(es).
Residence:
1 2426 Greenbriar Lake Road
Tyler, Texas 75709
Office:
United States Courthouse
221 West Ferguson, Suite 100
Tyler, Texas 75702
Date and place of birth.
October 1 9, 1 937
Longview, Texas
4. Marital Status (include maiden name of wife, or husband's name). List
spouse's occupation, employer's name and business address(es).
Frieda Helen White
Homemaker
1005
Education: List each college and law school you have attended,
including dates of attendance, degrees received, and dates degrees were
granted.
Kiigore Junior College, Kitgore, TX 7/56-5/57
U.S. Naval Academy, Annapolis, MD 6/57-1/58
East Texas Baptist College, Marshall, TX 6/58-1/59
Abilene Christian College, Abilene, TX 1/59-1/60
University of Texas, Austin, TX 1/60-8/61
B.B.A.
University of Texas Law School, Austin, TX 9/61-1/64
L.L.B.IJ.D.)
Employment Record: List (by year) all business or professional
corporations, companies, firms, or other enterprises, partnerships,
institutions and organizations, nonprofit or otherwise, including firms,
with which you were connected as an officer, director, partner,
proprietor, or employee since graduation from college.
Associate Attorney with Law Firm of Parish & Parker, Gilmer, Texas (March
1964-1965)
Associate Attorney with Law Firm of Kenley-Boyland, Longview, Texas
(January 1965-August 1965)
Administrative Assistant for U.S. Congressman Ray Roberts, Washington, D.C.
(August 1965-August 1966)
Partner in Law Firm of Smead, Roberts, Harbour, Smith, Harris, French & Parker
(originally Law Firm of Roberts, Smith & Parker until merger with Law Firm of
Smead, Harbour, Harris & French), Longview, Texas (August 1966-1971)
Partner in Law Firm of Rutledge & Parker, Fort Worth, Texas (May 1971-1972)
Partner in Law Firm of Nichols and Parker (originally Law Firm of Ritter, Nichols,
Parker & Thibodeaux until death of Mr. Thibodeaux and departure of Mr. Ritter
from firm), Longview, Texas (June 1972-April 1979)
1006
7. Military Service: Have you had any military service? If so, give
particulars, including the dates, branch of service, rank or rate, serial
number and type of discharge received.
No.
8. Honors and Awards: List any scholarships, fellowships, honorary
degrees, and honorary society memberships that you believe would be
of interest to the Committee.
None.
9. Bar Associations: List all bar associations, legal or judicial-related
committees or conferences of which you are or have been a member and
give the titles and dates of any offices which you have held in such
groups.
American Bar Association - former member
State Bar of Texas
Gregg County Bar Association, President - 1 978-79
Harrison County Bar Association
Northeast Texas Bar Association
1 0. Other Memberships: List all organizations to which you belong that are
active in lobbying before public bodies. Please list all other organizations
to which you belong.
Federal Judges Association
The organizations show below are not engaged in lobbying.
Tyler Petroleum Club
Local club where I occasionally eat lunch.
Greenbriar Lake Club
Organization that controls fishing in the small lake where I reside.
1007
1 1 . Court Admission: List all courts in which you have been admitted to
practice, with dates of admission and lapses if any such memberships
lapsed. Please explain the reason for any lapse of membership. Give the
same information for administrative bodies which require special
admission to practice.
Supreme Court of Texas April 27, 1964
Eastern District of Texas March 1, 1965
Northern District of Texas June 16, 1971
United States Supreme Court April 1, 1969
United States Court of Appeals,
Fifth Circuit February 5, 1979
12. Published Writings: List the titles, publishers, and dates of books,
articles, reports, or other published material you have written or edited.
Please supply one copy of all published material not readily available to
the Committee. Also, please supply a copy of all speeches by you on
issues involving constitutional law or legal policy. If there were press
reports about the speech, and they are readily available to you, please
supply them.
A 1986 Constitutional Convention? 48 TEX. Bar J. 896, September 1985
Co-author: Price Ainsworth
Fisher, Gallagher & Lewis
70th Floor, 1000 Louisiana Street
Houston, Texas 77002
(713) 654-4433
Mr. Ainsworth was a law clerk at the time. He contributed most of the
research, and we shared the writing of the article.
Streamlining Complex Cases, U.T. REV.LITIG., Vol.10, No. 2 (1991)
"ADR" Techniques in the Reformation Model of Civil Dispute Resolution, 46
S.M.U. L.Rev. 1905 (1993)
Co-author: Leslie J. Hagin
Ms. Hagin is on my staff as a law clerk. She contributed most of the research
of the article. The substantive content is entirely mine, and I contributed the
major portions of the writing.
1008
I have frequently addressed bar associations, circuit judicial conferences, and
local groups. However, I do not read prepared speeches and therefore, do not
have copies of any of my speeches. The most frequent topic has been judicial
administration which broadly falls within legal policy. To my knowledge, none
of my speeches has attracted the attention of the press.
13. Health: What is the present state of your health? List the date of your
last physical examination.
Good.
September 16, 1993
1 4. Judicial Office: State (chronologically) any judicial offices you have held,
whether such position was elected or appointed, and a description of the
jurisdiction of each such court.
United States District Judge
15. Citations: If you are or have been a judge, provide: (I) citations for the
ten most significant opinions you have written; (2) a short summary of
and citation for all appellate opinions where your decisions were reversed
or where your judgment was affirmed with significant criticism of your
substantive or procedural rulings; and (3) citations for significant
opinions on federal or state constitutional issues, together with the
citation to appellate court rulings on such opinions. If any of the
opinions listed were not ofTicially reported, please provide copies of the
opinions.
In Chronological Order:
1. Dean v. Timpson Independent School District. 486 F. Supp. 302 (E.D.
Tex. 1979);
2. United States v. Texas Education Aqencv (South Park I.S.D.). Civil
Action No. B-6819-CA (E.D. Tex. (Beaumont), Aug. 5, 1981)
(unpublished - enclosed);
1009
3. State of Texas v. Secretary of the Interior, 580 F. Supp. 1 1 97 (E.D. Tex.
1984);
4. Jenkins V. Ravmark Industries. Inc.. 109 F.R.D. 269 (E.D. Tex. 1985):
5. Frisco v. Blackburn. 782 F.2d 1353 (5th Cir. 1986) (sitting by
designation, opinion for the court);
6. Sierra Club v. Lvnq, 694 F. Supp. 1260 (E.D. Tex. 1988);
7. Claude Cimino v. Ravmark Industries, Inc., 751 F. Supp. 649 (E.D. Tex.
1990);
8. Beets v. Collins, Civil Action No. 6:90cv575 (E.D. Tex. (Tyler), Apr. 29,
1991) (unpublished opinion - enclosed);
9. United States v.Melancon, 972 F.2d 566 {5th Cir. 1992) (sitting by
designation, special concurring opinion);
10. Sierra Club v. Espy, 822 F. Supp. 356 (E.D. Tex. 1993);
See Attached for answer to Subpart (2) of this question.
(I do not recall and have not found any cases where rulings were
criticized that are not included in the answer to 15(2).)
See Attached for answer to Subpart (3) of this question.
16. Public Office: State (chronologically) any public offices you have held,
other than judicial offices, including the terms of service and whether
such positions were elected or appointed. State (chronologically) any
unsuccessful candidacies for elective public office.
None.
17. Legal Career:
a. Describe chronologically your law practice and experience after
graduation from law school including:
1010
1 . whether you served as clerk to a judge, and if so, the name of the
judge, the court, and the dates of the period you were a clerk;
No.
2. whether you practiced alone, and if so. the addresses and dates;
No.
3. the dates, names and addresses of law firms or offices,
companies or governmental agencies with which you have been
connected, and the nature of your connection with each;
Associate Attorney with Law Firm of Parish & Parker, Gilmer,
Texas (March 1964-January 1965)
Associate Attorney with Law Firm of Kenley-Boyiand, Longview,
Texas (January 1965-August 1965)
Administrative Assistant for U.S. Congressman Ray Roberts,
Washington, D.C.
(August 1 965-August 1 966)
Partner in Law Firm of Smead, Roberts, Harbour, Smith, Harris,
French & Parker (originally Law Firm of Roberts, Smith & Parker
until merger with Law Firm of Smead, Harbour, Harris & French),
Longview, Texas (August 1966-May 1971)
Partner in Law Firm of Rutledge & Parker, Fort Worth, Texas
(May 1971 -May 1972)
Partner in Law Firm of Nichols and Parker (originally Law Firm of
Ritter, Nichols, Parker & Thibodeaux until death of Mr. Thibodeaux
and departure of Mr. Ritter from firm), Longview, Texas
(June 1972-April 1979)
1011
b. ' 1. What has been the general character of your law practice, dividing
it into periods with dates if its character has changed over the
years?
In my early years, I had a people practice. I enjoyed a type law
practice that has largely passed from the scene. I had a steady
stream of individual clients with individual problems. It was a
typical country lawyer - general practice. I tried their civil cases,
defended their criminal cases, drew their deeds and wills,
probated their estates, attempted to talk them out of getting
divorces, and in general stood between them and the government.
My fee arrangements were contingent on success or for a
negotiated flat fee. When they could pay, they did; when they
couldn't, I did the work anyway.
My practice then evolved into more of a civil trial specialty. While
I continued to represent individuals on a contingent basis in
personal injury actions, I also represented a number of insurance
companies on the defense side of personal injury cases.
The last five years of my practice involved a greater concentration
of product liability and medical malpractice defense while at the
same time I handled some plaintiff personal injury, contingent
cases. I also began trying more oil and gas and other commercial
cases. At the time of my appointment to the district bench, my
partner and I represented one bank, the local newspaper, our city
hospital authority, and various corporate clients, in addition to our
regular insurance company clients.
I found divorce cases unpleasant and stopped taking them fairly
early in my career with the exception of cases involving close
friends that I could not avoid. I continued also to try the
occasional criminal case throughout my career.
2. Describe your typical former clients, and mention the areas, if any,
in which you have specialized.
See above.
8
1012
c. 1 . Did you appear in court frequently, occasionally, or not at all? If
the frequency of your appearance in court varied, describe each
such variance, giving dates.
Frequently.
2. What percentage of these appearances was in:
(a) federal court: - 1 0%
(b) state courts of record; - 85%
(c) other courts. - 5%
3. What percentage of your litigation was:
(a) civil; - 98%
(b) criminal. - 2%
4. State the number of cases in courts of record you tried to verdict
or judgment (rather than settled), indicating whether you were
sole counsel, chief counsel, or associate counsel.
At the time I prepared the Questionnaire in 1 978, I was able to
verify fifty-one cases tried to verdict over the five years preceding
my appointment. Eleven were as chief counsel, thirty-seven as
sole counsel, and three as associate counsel. Our office did not
maintain these type records so the numbers are low to some
extent. I have no way of accurately reporting the number of
cases tried prior to 1 974.
5. What percentage of these trials was:
(a) jury; - 90%
<b) non-jury. - 10%
9
1013
18. Litigation: Describe the ten most significant litigated matters which you
personally handled. Give the citations, if the cases were reported, and the
docket number and date if unreported. Give a capsule summary of the
substance of each case. Identify the party or parties whom you represented;
describe in detail the nature of your participation in the litigation and the final
disposition of the case. Also state as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or judges before
whom the case was litigated; and
(c) The individual name, addresses, and telephone numbers of co-
counsel and of principal counsel for each of the other parties.
I can only attach information I provided to the Senate Judiciary Committee in
1 979. My law firm's records have long since been destroyed and memory has
faded. In reviewing the information I provided in 1979, it occurs to nie that
these cases are not, in fact, significant but are simply the run of-the-mill
business handled by a civil trial lawyer in rural east Texas.
To assist in verification, attached to each case are current addresses of
surviving judges and opposing counsel that I was able to update.
19. Legal Activities: Describe the most significant legal activities you have
pursued, including significant litigation which did not progress to trial or legal
maners that did not involve litigation. Describe the nature of your participation
in this question, please omit any information protected by the attorney-client
privilege (unless the privilege has been waived.)
None
10
1014
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1. List sources, amounts and dates of all anticipated receipts from deferred
income arrangements, stock options, uncompleted contracts and other future
benefits which you expect to derive from previous business relationships,
professional services, firm memberships former employers, clients, or
customers. Please describe the arrangements you have made to be
compensated in the future for any financial or business interest.
My brother and I sold our parents' homeplace after their deaths and share
equally in the proceeds of a Promissory Note from Henry H. and Dawn B.
Leggett of Hallsville, Texas dated February 13, 1992 in the amount of
$60,000.00, with interest from that date at the rate of 8.00% per annum,
principal and interest payable annually in three equal installments of
$20,000.00 plus interest. These proceeds are then divided between my
brother and me.
2. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern. Identify the
categories of litigation and financial arrangements that are likely to present
potential conflicts-of-interest during your initial service in the position to which
you have been nominated.
The procedure utilized in the Fifth Circuit Court of Appeals involves a process
whereby the identity of interested parties is provided to the members of an
appellate panel when cases are assigned to that panel. If there is a conflict of
interest, I recuse myself.
The conflicts of interest I would have as a judge on the court of appeals are the
same as those I have now. They are suits involving banks with which I do
business, the gas production company I have invested with, and the law firms
where my daughter practices and son-in-law is practicing.
Do you have any plans, commitments, or agreements to pursue outside
employment, with or without compensation, during your service with the court?
If so, explain.
No.
11
1015
4. List sources and amounts of all income received during the calendar year
preceding your nomination and for the current calendar year, including all
salaries, fees, dividends, interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more (If you prefer to do so, copies of the
financial disclosure report, required by the Ethics in Government Act of 1978,
may be substituted here.)
See Attached Financial Disclosure Report.
5. Please complete the attached financial net worth statement in detail (Add
schedules as called for).
See Attached.
6. Have you ever held a position or played a role in a political campaign? If so,
please identify the particulars of the campaign, including the candidate, dates
of the campaign, your title and responsibilities.
I served as Gregg County Campaign Chairman for Congressman Ray Roberts
in each of his contested elections betv\/een the time I served as his
Administrative Assistant and the time of my confirmation to the district court.
I was active in each of Senator Lloyd Bentsen's campaigns in all respects of the
campaign. I do not recall whether I ever had a title.
I participated in fund raising activities for Bob Krueger in his 1978 Senate race.
I was also generally active in local politics.
12
1016
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar Association's Code
of Professional Responsibility calls for "every lawyer, regardless of professional
prominence or professional workload, to find some time to participate in serving
the disadvantaged." Describe what you have done to fulfill these
responsibilities, listing specific instances and the amount of time devoted to
each.
I accepted criminal appointments without fee.
I also provided legal services on a regular basis without fee.
The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any organization
that invidiously discriminates on the basis of race, sex, or religion. Do you
currently belong, or have you belonged, to any organization which discriminates
-- through either formal membership requirements or the practical
implementation of membership policies? If so, list, with dates of membership.
What you have done to try to change these policies?
Pinecrest Country Club
P. 0. Drawer 991
Longview, Texas 75606
(903) 758-5566
September 8, 1967 - June 23, 1978
May 25, 1984 - September 30, 1987
June 1, 1989 - July 31, 1992 (non-resident member)
Pinecrest Country Club was implicitly discriminatory from its inception in the
1930s until the mid-1970s. I am advised it has never been explicitly
discriminatory. Today Hispanics and Asians are members of the club; blacks
frequent the club as guests, but there are no black members. I am told that a
black has never applied for membership. Prior attitudes probably have had a
chilling effect on the willingness of blacks to apply for membership. I am
confident that no impediment exists today for blacks and that a qualified
applicant would be welcomed into the club.
I was a member of the Board of Directors for one year (1986). I initiated a
board discussion relative to minority membership in the club. I was pleased to
find that the Board had an appreciation of the problem and was quite willing to
rectify past attitudes by admitting any qualified black. I must say that my only
lingering criticism of the club is that it has never actively recruited blacks for
membership.
13
1017
3. Is there a selection commission in your jurisdiction to recommend candidates
for nomination to the federal courts? If so, did it recommend your nomination?
Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination and
interviews in which you participated).
There is no selection commission to recommend candidates for nomination to
the court of appeals.
I received a Questionnaire from Senator Bentsen which was made available to
Senator Krueger when Senator Bentsen joined the Cabinet. In response to their
inquiry, I have provided Senators Gramm and Hutchison with copies of that
Questionnaire. In January 1994 I was interviewed by White House counsel
Ron Klain. I then met with Bernie Nussbaum, but I would not characterize that
visit as an interview.
Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any specific case, legal issue or question in a manner that
could reasonably be interpreted as asking how you would rule on such case,
issue, or question? If so, please explain fully.
No.
Please discuss your views on the following criticism involving "judicial
activism."
The role of the Federal judiciary within the Federal government, and within
society generally, has become the subject of increasing controversy in recent
years. It has become the target of both popular and academic criticism that
alleges that the judicial branch has usurped many of the prerogatives of other
branches and levels of government.
Some of the characteristics of this "judicial activism" have been said to
include:
a. A tendency by the judiciary toward problem-solution rather than
grievance-resolution;
b. A tendency by the judiciary to employ the individual plaintiff as a vehicle
for the imposition of far-reaching orders extending to broad classes of
individuals;
14
1018
A tendency by the judiciary to impose broad, affirmative duties upon
governments and society;
A tendency by the judiciary toward loosening jurisdictional requirements
such as standing and ripeness: and
A tendency by the judiciary to impose itself upon other institutions in the
manner of an administrator with continuing oversight responsibilities.
I will attempt to answer this question in a manner that
acknowledges the Senate's right to consider all available information
about a judicial candidate, including the candidate's personal, political
and legal views so long as the inquiry stops short of seeking a
commitment from the candidate regarding how he or she might rule on
future cases.
I find myself in a position similar to an incumbent politician running
for re-election. I have a record created by fourteen and one-half years
on the district bench. The published portion of that record is available
to Senators to inform their decision on my confirmation. It contains
opinions that I am sure some would consider "activist" and opinions that
some would criticize as exercising too much "judicial restraint."
The controversy surrounding judicial review did not stop with
Marburv v. Madison. The remedies ordered in voting rights,
desegregation, and prisoner cases in recent years have again focused the
controversy. Today the level of deference the courts should afford
governmental agency decision making or legislative action can pose very
difficult problems for the federal courts. These problems are best solved,
in my view, by restricting judicial review to the facts of the actual
controversy before the court in the particular case and by leaving policy
making to the legislative branch. My experience has been that each of
these cases is intensively fact specific. As a general rule, I believe that
unconstitutional legislative action should be corrected by legislative
bodies. Likewise, executive decision making, if found to be in violation
of Statutes or the Constitution, should not be replaced by judicial
decision making in the areas of responsibility and expertise assigned to
the governmental agency. The courts are ill-equipped to run
governmental agencies or political subdivisions through the appointment
of special masters, administrators, or otherwise. However, on those rare
occasions when intransigence is encountered and initial deference has
failed to correct deprivation of statutory, fundamental, or Constitutional
rights more far-reaching remedies can be justified.
15
1019
I view the concept of separation of powers to impose on the
judiciary the duty to guard as jealously the prerogatives of the executive
and legislative branches as the judiciary guards its own.
16
1020
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in
detail all assets (including bank accounts, real estate, securities, trusts, investments,
and other financial holdings) all liabilities (including debts, mortgages, loans, and other
financial obligations) of yourself, your spouse, and other immediate members of your
household.
ASSETS
Cash on hand and in banks
Texas National Bank
Longview, Texas (903) 759-3828
Robert M. Parker - Account dfe-SI 36-2 $ 35,939.28
1/2 interest in Parker Estate
Account #6-5148-6 ($798.63) $ 399.31
Southside State Bank
Tyler, Texas (903) 531-7111
Robert M. Parker - Account #4148835 $ 721.38
Robert or Frieda Parker
Account #4017234 $ 7,023.12
Total: $ 44,083.09
U.S. Government Securities None
Listed Securities None
Unlisted Securities None
Accounts and Notes Receivable:
Due from Relatives and Friends None
Due from Others -
One-half interest in Promissory Note from
Henry H. and Dawn B. Leggen of Hallsville,
Texas, dated February 13, 1992 in the amount
1021
of $60,000.00 with interest from that date at
the rate of 8.00% per annum, principal and
Interest payable annually in three equal
installments of $20,000.00 plus interest.
This was Note give to my brother and me upon
sale of our parents' home (after their death).
Proceeds from Note are divided equally between
my brother and me. Two installments have been
paid and there Is one remaining. My one-half
will be $10,000.00 plus interest.
10,000.00
Doubtful
None
Real Estate Owned
376 8 acres located in Harrison County,
Texas. The property is valued at $1,000.00
per acre.
$ 376,800.00
One-half interest In 6 acres, Harrison County,
Texas ($21,000.00 - total)
Home on Greenbriar Lake Road
$ 10,500.00
$ 350,000.00
Autos and Other Personal Property
1993 Grand Cherokee Jeep
1992 GMC Suburban
1987 Lincoln Towncar
Farm Equipment
Boats
Cash Value - Life Insurance
$ 29,000.00
$ 17,500.00
$ 4,500.00
$ 25,000.00
$ 20,000.00
None
1022
Other Assets - Itemize
The value of the various small working
and royalty interest with Winchester
Production Company fluctuate with the
price of natural gas. The value attached
Is at current prices and does not reflect
any value for undeveloped reserves.
A list of the leases and wells involved is
part of my Financial Disclosure attached to
the Senate Judiciary Committee Questionnaire.
I will provide a schedule of these assets if
desired. $ 250,000.00
TOTAL ASSETS $1,137,383.09
CONTINGENT LIABILITIES
As Endorser, Comaker or Guarantor
Southside State Bank
Loan securing car for
Cecil and Dorothy Taylor $ 4,818.30
Southside State Bank
Loan securing truck for Cecil
Taylor $ 1,816.76
On Leases or Contracts None
Provision for Federal Income Tax None
Other Special Debt None
LIABILITIES
Notes Payable to Banks - Secured
Southside State Bank - Tyler, Texas
1992 CMC Suburban ^ 11,000.00
1023
Texas National Bank - Longview, Texas
1993 Grand Cherokee Jeep $ 20,000.00
Texas National Bank - Longview, Texas
Acreage in Harrison County, Texas $ 180,000.00
Notes to Banks - Unsecured
Texas National Bank - Longview, Texas
Parker Estate {Total amount of note - $500.00)
my one-half interest owed $ 250.00
(This is a line of credit in the amount of $25,000.00 -
we have purposely left a $500.00 balance to leave it open.)
Southside State Bank $ 16,000.00
Tyler, Texas
(This is a line of credit in the amount of $25,000.00 with
a $16,000.00 balance.)
Notes Payable to Relatives None
Notes to Others
Accounts and Bills Due (Estimated)
Unpaid Income Tax
Other Unpaid Tax and Interest
Real Estate Mortgages payable
Tyler Bank and Trust Company
Tyler, Texas Mortgage on Home
Chattel Mortgages and Other Liens Payable
Other Debts - Itemize:
TOTAL LIABILITIES
NET WORTH
None
$ 3,000.00
None
None
$ 23,104.38
None
None
$ 259,989.44
$ 877,393.65
TOTAL LIABILITIES AND NET WORTH
$1,137,383.09
GENERAL INFORMATION
1024
GENERAL INFORMATION
Are any assets pledged?
1992 GMC Suburban pledged to Southslde
State Bank, Tyler, Texas to secure note.
1993 Grand Cherokee Jeep pledged to
Texas National Bank - Longview to secure note.
House at 1 2426 Greenbrlar Lake Road Is
mortgaged at Tyler Bank & Trust Company,
Tyler, Texas
Are you defendant in any suits or legal actions? No.
Have you ever taken bankruptcy? No.
ADDITIONAL INFORMATION:
I have not listed household furnishings, paintings, library, gun collection or various other items
of personal property, but can if it is needed.
I, Robert M. Parker, certify that to the best of my knowledge and belief, the above and
foregoing is a true and accurate statement of my financial condition on February 1 , 1 994.
ROBERT M. PARKER
1025
FINANCIAL DISCLOSURE REPORT ??nB.f^H-Hr=°-
C O.S.Z.A. App. t, fllOl-lU)
1. ranoo *aporUB9 (Lul ua«. tixmz, ua(U« iUUall
PARKER, ROBERT M.
2. Coux-l or 0r9ULlZAtJ.aa
U.S. DISTRICT COL-RT
EASTERN DISTRICT OF TEXAS
3. Oat« oC lUporT
1/24/94
4. Tld* (Arcicla III jud9«* lii(licat« acUv* oc
••alor at^roa; HAgiatxata ladgaa lodlcaCA
full- or p«rx-UjM|
CHIEF U.S. DISTRICT JUDGE
I. Rapox-t ryp« ica«LK «?prop=3Jt« cyp*)
e. Haporusg Parlod
AMENDED 1992
7. C&aab«ra or Of;ic« Addxaaa
221 WEST FERGUSON, SUITE 100
TYLER. TEXAS 75702
1. OD Usa baala of uia lAforaatloQ conulnad la tbla Baporc. IC
la. m sy opuuos. 1£ caapi.Luica wiu appllcula law* and
ragulanosa
RavlawlDC 0£;icar slcaarora
IMPORTANT NOTES: The instructions acamipaming this form must be foRowed. Complete oil parts,
checking the NOKK box for each section when you have no reportable information. Sign on last page.
I. POSITIONS. (Reponing mdividua] only, see pp. 7.8 of Insiruoions.)
POSITION NA.VtE OF ORGA-VIZ-AION/ENTITY
n
NON£ (Ho raporLabla poalUona)
EXECUTOR
EXECUTOR
ESTATE OF IDA LURA ?.\RKER - DECEASED
ESTATE OF ROSS M. PARKER - DECEASED
II. AGREEMENTS. (Reporting individual only, see p 8-9 of Instructioiis.)
DATE PARTIES A.NfD TERMS
I XX I NONE (Wo raporcatole a9raaa*Dta)
NON-INVESTMENT INCOME. (Reponmg individual and spouse, see pp. 9-12 of Instructions.)
DATE SOURCE A.NP TYPE GROSS INCOM3
(Honorana only) (youis, not spousf
n
NONE (No reportAbla Doo-lnvsatjaaot Incoa*)
2/13/93 Sale of parents' home and 51 acres in Hallsville, TX 5 75,000.00
$
$
s
$
FINANCIAL DISCLOSURE REPORT (cont'd)
1026
*amm at Psraen JtoporUAg
ROBERT M. ?.\SK£R
D«t« at Impact
1/24/94
AMENDED 1992
IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.
(Indudes those to spouse and dependent children: use the parcntheticals '(S)' and '(DC)* to indicate reportable
retmbursements and gifts received by spouse and dependent diildren. respectively. See pp.L3-15 of Instruclioiu.)
SOURCE DESCRIPTION
NONE [Mo aucb rapaxxabla rmlMbazmmamnZM or glfrs)
Association of American Law Schools Reimbursement of travel expenses to San Antonio and
State Bar of Texas — Advanced
Personal Injury Law Seminar
Return — Speaker o:i Program: January 6. 1992 - S199 (
Reimbursement of travel expenses to Houston, iexas
and Return — Speaker m Program; July 18, 1992 —
$180.26
V. OTHER GIFTS, (includes those to spouse and dependent children: use the parcntheticals '(S)' and '(DC)' to
'1 aep
indicate other gifts received by spouse and dependent cliildren. respectively. See pp.l5-li of InsOructioiis.)
SOURCE
X I NONE {Ho aucb r*por=Abla gitZM)
□
DESCRIPTION
VALUE
VI. LIABILITIES, (includes those of spouse and dependent children: indicate where applicable, penoo rcspooslblc
for liabilitv bv using the parenthetical '(SV for separate liabilitv of spouse. '(J)' for joint liability of rcpnrlint
individual and spouse, and '(DC)' for liability of a dependent child, bee pp.lfr-18 of^lnstrucnons.)
VALUE CODE*
D
CREDITOR
NONE tNo raporubla liabilitioa)
DESCRIPTION
Texas
Commerce
Bank -
Longview
TX
Texas
National
Bank -
Longview
TX
Texas
Nat
.onal
Bank -
Longview
TX
South
side
State
Bank
- Tvler, TX
Loan No.
9007
Loan No.
30264
Loan No.
47580
Loan No.
D1L35877
— 1992 CMC
Suburban
vhuas codes: j - sis.ooo or !«•• i • sis.ooi u ssa,ooo i - sio.ooi t.o sioo.ooo m - $100,001 to szno.ooo
R - $250,001 u SSOO.OOO O - 5500.001 ro Sl.OOO.OCO ? • nor* -..=Ma SI, 000, 000
1027
FINANCIAL DISCLOSURE REPORT (cont'd)
H Of P«*«oa Rapor'i^z^
ROBERT M. ?.^vR-'J:H
0«t« of Raporc
i/;4/9A
AKEN-DED 1^92
VII. INVESTMENTS and TRUSTS - income, value, transactions, ^includes those of spouse
and dependent children: see pp. 18-27 of Instructions.)
A.
D**crlpU^in or Ammmzm
(l£Clucln9 ^rua^ asB«t«)
Xndlc«l«, MD«r» applicable, ownar o£
uia aaaac Dy utuig ^^a parant.nat^cal
•fJl" ;or talr.r ownaranip o: raoor:-
Ing Individual and tcooaa, "CSJ tcr
aaparata ownararLip Dy apouaa. *'DC)"
tor ovDAcanip by dapaodaoi caild.
Plac* '(X)* afrar aach aaaat
mx^tpx trcsi pr^O£ aiacloauxa.
B.
dun CO
'Sins'-''
3ro«« •^•.■2m
tz en; cr
reaor-zir.;
0.
Trjrmiciloaa curing reporting psrlod
;i)
Aat..
Coda'
l*-B)
■•i)
(Jr.
civ..
zmoz oc
LSZ. )
Coce"
!-■-?]
Valua
necr.adt
-- [ I' noi wteBpt £ros aiacioeure
(2fST,, 1.2)
13)
Valoa..
Csoa-
(J-?)
14)
:ialii,
::oaa-
l»-B)
'5)
Idaotlty of
bnvar/aallar
III private
traaaactloa)
NONE (Ho raportajjla
lacoaa, aaaaca, or
1
* One-half interest in
i
2
aDDroximatelv ;74 Acres
'■
m Harrison Countv, T>;
0 1 w
4
Sale of Rock from Acreage
D
purcha
"^^nd ?'31,
92""
92 '.)
Judge Parker '
rook to H i H
5
i
Crushed Rock
6
MAXV^'ELL OIL & GAS
B
WI
J w
Sell '^92
J
c
Judge Parkfi -
sJ_ t^ ll?Xtff U, i
7
Calvin, Jr. , -'l
A
Wl
J 1 w
/Til cf the
Worki
ig In
:erest
•
D.J. '..ehmann ' !
A
WI
,
Vi
J owned ' bv J idee P
irker
in the wells
9
Holmes •'• 1
A
KI
J w
) listei her
! in L
.nes
7, 8, 9. and '.
10
Holmes '^2
A
WI
j| w
/
was sold t
) Maxw
ill 0
LI i Gas, the ,
11
1
V
12
Piano Ppr lolPutn/Operated
!
by Jim Kmerson
D
Wl
K 1 W
14
Schrepel (■'2
D
Wl
K V
i
li
}
16
1
17
1
la
19
20
1
1 XDCoaa/Caln Codaa; A=S1,000 or laaa B-Sl.OOl zo S2,SC0 C*32,::i zn S.OOO D-$S,001 to SIS, 000
[Saa Col. Bl 4 041 E-S15.001 to S5C.000 r-$S0,001 '.o C10C.C30 5-S::: y^'. to 51,000,000 B-Mora than Sl^OOO.OUO
2 Valua cooaa: .--S15.300 or .aaa K-S15.001 to S50.011 l-s;:.:-l to SIOO.OCO M-$100,OOl to S25O,CJ0
(Saa Co;. CI 4 03) R-SISC.COl t« S500.000 t>5500.001 to SI, O::, 000 ?— =ra -_-«Ti SI. 000. COO
i Vtium HatDoo Codaa: C-Appraiaal R*Cost I raai attata c::-y; S^AaaaataaDt T-CaaA/Markat
(Saa Col. CXI U-BooK Valua V-Ottar w.Srtiaa::ad
1028
FINANCIAL DISCLOSURE REPORT (cont'd)
Of Parson R«port^-g
ROBERT y.. P.^RKER
Data or Rsport
1/24/94
AMENDED 199?
VII. INVESTMENTS and TRUSTS - income, value, transactions, (ijaciudes iho$e or spouse
and dependent children; see pp. 1&-27 of Instructions.)
k.
D*M:riptaan of AMMmt.m
(laciuding zrumz km^mzm)
Xndlnara. wek«r« applAcsbl*. own«r of
U)a a«a«c 9y umutq '^m par«nU)«t.lca^
•fJl- :ox ^alj\z owT«r»Dlp of repo— - .
i.nq IndxviduAi uic Booosa, *[Si* tor
•apATBrs ok/narsaap oy spouaa. *(3C}"
Cor ovnacanxp By dapondaat cbild.
Piaca *(X)" afcar aacla asaat
axaapt trou prioc dxacloaura.
B.
lacOBa
during
raooning
parlod
c.
Groaa val^a
at and ot
taporvl-g
pariod
9.
Trasaaeeloea during raporUjig pariod
1
ID
Xat..
coda-
Ul
•ST:
raat or
lAt. }
il)
ralaa.
Coca"
(J-?)
Valda
Hat.iod.,
rcda-
ir not axaapt Cros dlacioaura j
laca;
"eata.
(3)
Valoa..
Coda-
(J-P)
'*' 1
ilaln.
Cooa-
(5)
Xdast;ty o£
bovar/aaDar
{11 prlvata i
trasaactloD) ;
NONE (No raportabla
iDCOaa, aaaau, or
1
!
1
I
WINCHESTER PRODUCTION
G WI
N
W
1
i
Carr 1
C
WI
J
w
1
i
Carr JT
A KI
J
w
1
J. W. Coney
A
WI
J W
Plueeecl and
Abandoned
10/15/92
s
Jonesville 1
B
WI
J
w
1
6
Jonesville 4
C WI
J
W
1
7
Jonesville 7
B
WI
J
W
•
Jonesville 7A
A
WI
J
W
1
i
9
Jonesville 8C
B
WI
J
W
1
Jonesville 8T
B
WI
J
w
1
11
Jonesville 2
C
WI
J
w
Jonesville 5
D
WI
K
w
11
Jonesville 10
E
WI
L
w
1
14
Jonesville 11
C
WI
J
w
IS
Jonesville 14
D
WI
K
w
1
i(
Jonesville 15
A
WI
J
w
n
Jonesville 16
B
WI
J
w
i(
Jonesville 17
B
WI
J
w
i«
Jotip<;vi'Tp 18
A
WI
J
w
20
1
1
1 iDcomm/Otln Cadaa: fSX.DOO or laaa 1-Sl.OOl u S2.S00 :>S2.131 zx> S.OOO D-SS.OO> to SIS, 000
rsaa Col. Bl I 0»1 r-Sl5,001 to 150.000 r-S50,001 to S-.OO.OOO 0-S'OC.?01 to Sl.OIO.OOO B-tWra thao 51.000,000
! Valua Codaa: .--Sli.600 or laaa K-SlS.COi to SS6.069 :.->i3.:^l to SIOC.OCO R-JIOO.OOI to S2S0.000
tSaa col. c: ( 031 5-5250.001 to S5O0.0OO (^5500,001 to Sl.OOC.OCO ^-"ora --an SI. 000. COO
i Vala* KatDod Codaa: O-Appraxiai R-Coat i .-aa.i as iita or_r; S-Aaaaaaaast T-CaaA/Mukat
(Saa Col. C2| U-Book Valwa v-otBar — Eatijatad
1029
FINANCIAL DISCLOSURE REPORT (cont'd)
Htmm of r«rsao K«por^i=;
SC3ERT M. PARKER
D»XM of Kaporc
Amended 1992
VII. INVESTMENTS and TRUSTS - income, value, transactons. onciudes those of spoilt
and dcpcndeot children: see pp. lS-27 of lustructioiis.)
Indlcsta. Mb*r* applical3d». ownar of
zt\m aammx. xr* uiui? '-h» par«fiUi«c^c«l
"(Jl" fax iQlJix CT*m*r»nip of raport-
Ing ir.aivi3ual anQ sDooaa, *[S)" for
■ BfMza'ca okraaraoip Dy apouaa. *(DC)*
£or ^tfDaicaiu.p by oapaoaaci cailct.
FJac« *(X)* mtxmx sacb asact
•aattpt iroa pnoc di^cioaura.
lacoaa
auncg
raporx^ng
p«rlo4
Cloda-
rra* vaioa
a*, anc o'
raoor'^^r.g
tloaa during raporcijig pvilod
no^ axaapc txm Olacioaor*
bvy.aall.
xar^ar.
Cain*
Coaa^
bay*r/aailar
(ir p:ivaca
traaaactlos!
□
NONE [Mo raporiAAla
iDcoa*. «•••(«, or
txBAaarclona}
Lavada Cliurch
Narramore
Tramme] 1
Trammel 2
Trammel 3
Trammel ^
N. Jonesville 1
N. Jonesville 2
N. Jcnesvi] le U
N. Jonesville 6
S. Jonesvil le 7
Texas
WI
WI
J 1
J i
WI
WI
l_w_
I w
JO-
WI
WI
Wl
VI
WI
Wl
Knighlon 1
Knighton 2
Knighton 8
Lucille 1
Jonesville
11
Steele (• 1
19
Steele '1
Wl
WI
WI
WI
iAi\,
w
J_I..
Wl
WI
We have I '^een
S. J..!etvm
-tT»
advis:d bv
b IIUWI
Winchesto 1 1
bKBiii'luKV.^''
Abamloiied ( 1
1 Xncaaa/Ca^n codaii K«$1.0O0 or \mam
CS«« col. Bl t D«' t-S'.5.001 to S50.000
2 VaXuo Cooos; w-Sli.OOO or A«»a
B-Sl.OOl to S2.i00
F-$50,001 ■= riOO.OOO
(•SIS, 001 -^ iSO.OCC
C-i2,fC; ^i i.OOO [>*S5,001 tfi 515.000
S«S:3C.CC', to SI. 000. OOP B«Wor» taap $1.000, QCC
:."S4o.:-: io sico.ooo h«$ioo,ooi to $750,000
IS— CDl. CI t D31 !»*S250.001 to SSOO.DOO OS500.00: •-= Sl.CCJ.DOQ »»«*er» •— *n 51,000.000
Valoo Mtnoo codos: 5"»ppr«i««l o-comt ir»«. osuri o:i-») s-MM>u«st T-CuB/H*rut
Tvl;
(
5"»ppr
U-Bootl V«lu*
w«Es^;.=a-i«d
1030
FINANCIAL DISCLOSURE REPORT (cont'd)
Raa* at ParsoD Kapomog
ROBERT M. PARKER
Dat4i of Kaporr
1/24/94
Amended 1»92
VII. INVESTMENTS and TRUSTS - income, value, transactions. (lodudes uu»e or spouse
and dependent children; see pp. 18-27 or Instructions.)
(Iscludlng zrumt aaB«u)
Indicate. Mbar« appXlcatals. ownar of
tb« aBBst by uimg ^a paraatAau.cal
"(J)' ;or lalnt owsaraaxp of raport-
Ijig Individual axid aponaa. 'tS) for
aapazaca OMi^raalp oy apouaa. *(DC)"
for evnacanxp by dapamlaac ciiild.
Flaca '(Z)- afuc aaeh aaaat.
acaapt trim pnor dxacloauxa.
B.
durino
raporxlng
c.
Oroaa valoa
at and o!
raportirg
par-.od
0.
TTinaai rlona during x»poTClsg pulod
i
U)
Coda^
l»-a)
12)
,Typ«
(a.g.,
raot QC
U)I. )
(1)
Coda'
(2)
Valua
Hat.-vod^
t5-«)
l£ oot vxaaipc iram olscloaura |
(3)
Valaa.,
coda-
U-Pl
l«)
Cain,
Coda"-
i»-a)
Idaacltr of
taru/aallar
[it PTlvata
traaaaeuon]
NONE IHo raportabla
locoaa. aaaaca, or
Steele #3
A
WI
J
W
Steele /»4
D
WI
K
W
Steele /'5
C
Wl
J
W
Coleman I'l
A
WI
J
W
Jonesville #19
A
WI
J W
Jonesvllle #20
A
WI
'
w
Jobe ,n
C
WI
J
w
Jobe n
C
Wl
J
w
Jobe ('3
D
Wl
K
w
Jobe #4
D
WI
K
w
Jobe If 5
E
WI
K
w
Jobe *6
E
WI
L
w
Jobe #8
A
WI
J
w
Knighton //7
A
WI
J
w
1
1
I IncoM/Caln codaa: l-Sl.OOO or laa
(Saa Col. Bl t D4I £-515,001 lo Si
• 1-S1,001 to S2.S00
0,000 r»S50,001 to 5100,000
C<2.£01 ir 5,000 D«$S,Q01 to 515,000
C-SIOO.COI to 51,000,000 B-Hora thao $1,000,000
i Valua Cooaa; J-Slb.OOO or ia
(Saa Col. CI k 03) N-S2S0,C01 to S
aa S-SIS.OOI to 550,000
500,000 05500.001 to 51,0C0,00
i.-si(J,oc; -_o iiW,ooo it-$io6,fl(lx to $256, ooo
3 ?-Mor» --»= St.. 000, 000
3 Valaa HatAod Codaa: Q-Apprai»ai
(Saa Col. C3) U-BooK Valua
It*Coat ( raal aetata oo-
v>ouar
Y) S'Utaas.
aast T-CaaB/Narkat
tad
1031
FINANCIAL DISCLOSURE REPORT (coofd)
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, ^initiate pan of Report.)
I receive no compensation lor servmt; as l
Executor of the Estates of ny parents.
IX. CERTIFICATION.
In compliance with Ihe prov-isions of 2i! U.S.C § 455 and of Advisory Opinion No. 57 of the Advisory Committee c
Judicial Activiiies, and to the best of my knowledge at the time after reasonable inquiry, 1 did not perform any adjudicato
funaion in any litigation dunng the period covered by this report in which L my spouse, or my minor or dependent childre •
bad a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigatioiL
I certify that all information given above (including information pertaining to my spouse and minor or dependent childre ■
if any) is accurate, true, and complete to the best of my knowledge and beliet and that any information not repoitetl w;
withheld because it met applicable statutory provisions permitting non-disclosure.
I further certify
reported are in com
regulations.
Signature
earned income from outside employment and honorana and the acceptance of gifts which have bet
,ce with the provisions of 5 U.S.CA. app. 7. § 5Q1 et sea., 5 U.S.C § 735.3 and Judicial Conferen'
lUV-
Date January 2A. 199t
NOTE: ANY INDIVIDUAL WHO KNOWINGLY ASD WILFLOJ-Y FALSIFIES OR FAILS TO FILE THIS REPOF
MAY BE SUBJECT TO CFVTL AND CRIMINAL SANCTIONS (5 U.S.CA APP. 6, § 104, AND 18 U.S.C. S 1001.)
FILING INSTRUCTIONS:
Mail signed original and 3 additional copies to:
Judical Ethic Commitlee
Administrative Office of the
United Slates Courts
Washington. DC 20544
1032
FINANCIAL DISCLOSURE REPORT
Xaporc Haqulx^ kr U* Btklea
KmtOTU Kcx. of 19«ff, rub. L. «o.
101-194. HenraaMT 10, 19M
(S U.S.C.A. App. t, fSlOl-lU)
1. fanes toporu.119 (Lut au«, tLnz, mlculs Inln^l
PARKER, ROBERT M.
2. Court or Or;aal:ataoa
U.S. DISTRICT ccrxr
EASTERN DISTRICT C." TEXAS
1. Data at (apart
January 28, H<
4. Tlcl* (Az-Clcla IZZ judgsa Ijidicat* active or
aanlor atacua; naalatrata ludgoa iiidlcaca
tall- or p»rt-vl^)
CHIEF U.S. DISTRICT JUDGE
S. Haport rvpa (caaea a;;rs;z^JU rypa)
Bnnlnatloc. Data
*. «apoRU« ranad
1993
loltial '^ Hr"nal ___ Pljial
7. Cbajwara or orrica Addxaaa
221 WEST FERGUSON, SUITE 100
TYLER. TEXAS 75702
• ■ 00 t&a Mala of t^a l^faraatloa eoataload la uua lapniT. It 1
ragiLlatioaa
Havlawloc Sfflcar 31ireat=r»
IMPORTANT NOTES: The instrucaons accompaming this form must be followed. Compleu all puts,
cbeddng the NONE box for each section where vou have no reponabte informaooD. Sign on last page.
POSITIONS. (Reponing individual only, see pp. 7-8 of Instnicions.)
POSITION NAME OF 0RGANIZ.AT70N/ENTITY
D
NONE (Ho raportabla poaltlooa)
EXECUTOR
EXECUTOR
ESTATE
OF
IDA .
.URA
p.-_h;<es
- DECEASED
ESTATE
OF
ROSS
M.
'.U-KER -
DECEASED
II. AGREEMENTS. (Reponing individual only, see p. 8-9 of Instructions.)
DATE PARTIES AND TERMS
XX
NONE (No raportabla a9D
III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 9-12 of Instructions.)
DATE SOURCE AND TYPE GROSS INCOMH
(Honoraria only) (yours, not spousr's
NONE (Mo raporLalil* boo- Invsataanc Inrn— )
1033
FINANCIAL DISCLOSURE REPORT (cont'd)
m of PATMOO KapoTS: a^
ROBERT M. P.MIKI?-
t)Mt» of tepckrt,
January 28, 19''
IV. REIMBURSEMENTS and GIFTS - transportation, locgir.g, food, entertainment.
(Includes those to spouse aod dependent children: use the parentheticals ' 3)* and *(PQ' to indicate reportable
reimbursements ana gifts received Iit spouse and dependent children, respectivel}'. See pp. 13- 15 of Instructions.)
SOURCE DESCRIPTION
m
'^ NONE (Ilo lucB raportabla rmlmbaruwmmazm or qt:zM)
V. OTHER GIFTS, (includes those to spouse and deoendent children: nse the parentheticals "(S)' and '(DC)' to
indicate other gifts received by spouse and dependent childra. respectively. See pp.l5-l6 of Instructiiins.)
□
SOURCE
NONE {Ho sucb raponaljla giZtm)
DESCRIPTION
VALUE
VI. LIABILITIES, (includes those of spouse and dependent children: indicate where applicable, person responsible
for liability bv using the parenthetical *(S)' for separate liabilitv of sooose, '(J)* for joint liability of reporting
individual'and spouse, and '(DC)* for liability of a dependent child. "See pp.1^18 orlnstructions.)
CREOrrOR
I NONE (No r«porc«bl« li«tillltl»«)
TEXAS NATIONAL BANK - Lonaview, TX
TEXAS NATIONAL
BANK -
Longview, TX
SOUTHSIDE
STATE
BANK
BANK
- Tylet,
TX
*SOUTKSIDE
ST.\TE
- Tyler,
TX
DESCRTPTTON
Loan
No.
51350
Loan
No.
50370
Parker Estatel
Loan
No.
NO.
41917
Loan
D11358
■; - 1992 CMC
iuouroan
VALUE CODE"
• VALOZ CCBES: J • 515,000 or !••• I • 515,001 ^o SSO.OOO •- • SiZ.ZCl tD SIOO.OOO M - SIOO.OOl tD USO.OOO
H - S^SO.OOl to SSOD.OOO O • $500,001 to SI, 000, 000 ? - Rar« Z2LAD 51,000,000
1034
FTNANCLAL DISCLOSURE REPORT (cont'd)
Haas of ParsoD Xaper^^::;
ROBERT M. PARKER
Data of Itaport
January 28, 1^^
VII. INVESTMENTS and TRUSTS - income, value, transactions, (includes those of spouse
and dependent children: see pp. 18-27 of InstructiODS.)
Daarriptlon of Aaaata
(iACludlDg cruat aaaau)
Indlfata, wbara appllcabla. ovnar of
5??,f*?*' "^ ualai, ^a paraiitJiai.ical
*fj)' for ioint o»m«r»nIp of raporr-
Ing Individual aoe soooaa, "(51 for
aaparata OMnaraolp Dy apouaa. "(DC)"
for ovnaraoxp py dapanaaat e.'illd.
Placa 'IX)' atrar aacH aaaal
axaapi fxoa prior o^^cloaura.
B.
aurloo
raportlng
panoo
c.
Croaa valoa
at mnc of
raporLlr.g
partoo
0.
Tra^aaetloca during rapordag parlfld
ti;
Aat. .
Coda-
C2;
,Typa
a. 5.,
dlv. ,
rast Qc
lot. )
(1)
faloa.
Ccca-
(J-?)
(2;
Valua
Hat.too-,
C=Ga-
tiO.1' 1
if not aaaspt froa oiacloaura j
lata:
•«atja-
iay
(3) l«)
Valoa. Sain,
Csda- Cooa^
(J-?; (»-B)
Idaatlty of
buvaT^aallai '
rll prlv.ca 1
trasaactlos ]
NONE (No raportasla
lacGoia, aaaoca. or
1
1
1
1
376.8 acres located in
During i!993 i his aijreagi
that was i
Harrison County, Texas
X
k
originaii.v jdintjy owne(
brother, David Parl.er, .
by my '
nd me has been
surveyed and
partiJionec
i
4
'
1
1
a
1
Sale of timber from above
i
Robert M. Paike.
acreage located
sold timber to '
•
in Harrison County, Texas
G
sellin;
orice
G
T
Sell
lO/--
93
M
G
Kim Smith
9
Logging Company ^
1
10
1
1
11
i
12
Piano Petroleum a/k/a
i
i3
Jim Emerson a/k/a
i
'* Penson Production Co.
C
VI
J
W
1
i
IS
Schrepel "2
C
WI
J
w
1
It
17
1
1
le
1
1
19
1
i
30
1 XDCSaa/CalQ Codaa: ft-Sl,000 OI laaa B^Sl.OOl lo $2,S00
[Saa Col. Bl t 0*1 E-Sli.OOl to 550,000 r-550,001 to 5100,000
ci:,;;: to 5,oco i»ss.ooi to ji5,ooo
C-S1C:.X)-. to 51,000,0=0 S-Hora thao 51,000,000
! Vaiua cooaa: J-SIS.OOO or ^aaa »-S15,c)4: to s4o,OC0
(Saa Col. CI t 031 !1-$250.001 to 3500,000 C^S500,Q01 to 5-.,DCO,000
1.-S50,:;; t= sico.oio n-si66,46i ti JjJS.ooo
?-Hora -^an J: 000.000 J
J Valaa Hatiiod CoOaa; Q-Appraiaal R-Coat ( raal ostata oa.y
(Saa C(U. C3) u-BooR Valua v-otbar
) 3-A«*aia=ant
w.Cati^tad
T-Caah/Markat
1035
FINANCIAL DISCLOSURE REPORT (cont'd)
■■ or r«r«os topoxn^r.;
ROBERT M. F.\iLKZ}^.
Dae* of llapacx 1
January 28, 1
.1
VII. INVESTMENTS and TRUSTS - income, value, trarsactions. (includes those or spouse
and dependent children: sec pp. 18-27 of Instructions. J
ZndiCAta. wbara appllca&l*. ewnar oC
U* •■■•( try uflUi; x^m p«r«n^~.«t.lcal
•fJl" fox lain- own«x»ai.p of raoor:-
laq iDdividuai Ana aoouaa. * ;st " Icr
aaoacaca ownaraa^p ey apouaa, * I SC) "
tor WQ«csaxp oy oapanoaoc c=i-C.
Flaca
'iXi* mZ'Zmc aac!! aaaat.
Caca-
Croaa valaa
a^ anc o!
rapor-ll.-.g
parzDc
valaa^
actlocs durlzig rapore±og paxlod
XX DC^ asaapc txum aiacioa<ir«
Sain*
Csda-
air ot
n
NONH (No rapoRafila
Incoaa. aaaau, or
traaaaceiona ]
WINCHESTER PRODUCTION
Carr 1
Carr ::
Jonesvilie 1
Jonesville 4
Jone?ville 7
Jonosviile 7A
JonesviLle 8C
Jonesvilie 8T
G WI
S K
Jonesvilie 2
Jonesvilie 5
Jonesvilie 10
Jonesvi J ie 11
Jonesvilie 14
J-
T'T
TT
i
Jonesvilie 15
Jonesvilie 16
_Tnnpcv-i np 1 '
Jonesvi ] le 18
1 locoaa/Caln Ccdaa: X'Sl.OOO or laaa
fSaa Cal. B\ t D4) E-S'.S.OCl Zo $50^000 ____^ __^
i Vaiua Cccaa: J-^SIS.OCC or i.ei« S-S15,C:i ta 550, OC:: -•*;-, ;0l to SICCOCO
[Saa col. C. t d:^ H»S250,001 tc SSac.OOO O5500.C01 to Sl.QCS.tCJ y«*'e;a t.*i«n $ I.OQO.COO
S=51,001 to 52,S03
r»$so,cci tc sioo.oc
c^2,;:i tc s.oco d^ss.ooi to sii,ooo
c-s::". -CO-- to s:,ccc.oco H«wora than ji.QQO^QQj
n>S100,OOL CO slso.oo^
1 Vdiaa naCQcc Co^saa:
(Sa« Col. C2)
Q-App.-aisal
U«9ooK Valua
^Coat (raaJ. axtata i
V-Othar
S'Aas«sasaat
v--»^^.=atad
T*Caalt/Har)c«C
1036
FINANCIAL DISCLOSURE REPORT (cont'd)
t»mm of fmc»ea Raport.ir^
ROBERT M. PARK!-;
Data of Kapon
Januarv 28 , 19 '
VII. INVESTMENTS and TRUSTS - income, value, transacTions. oadudes tboK or spouse
•nd dependent children; see pp. 18-27 of Instructioas.)
paaerlpt^An oC Aaaata
(iaciiutia? cruar aaaau;
Trwliraf , wtaacv appllcaela. OM..ac of
Uia aaaac »y ualni; rj:a paran^iaucal
lai 1 iiiw
c-iTtnn
c.
Cross valla
a.^ vn:! o;
zaoor^aizq
panec
D.
Inq IjiAlviauai a£C ■t>ooa«, '(S)^ rcr
aaparaca ewaara&^p By •oooaa. ^(Dc;-
for owDacaoxp Oy oapaiuaaor child.
Plaea *rz)* afraf aach aaaat.
ax^ipc trca pr::ac di^cioaura.
HI
Ast. .
Coca-
c»-a)
I2i tl)
,Typ«
CUv. , Va>3*^
z*a-z ox Cac«-
Valua
(1: I£ 00*:. axaspc txom alAClosttX*
racK==" ; 2«y
Valaa.
Cooa-
14>
Sain,
Cooa*
laaBrtty o£
bovar/alllat
lit pTlvata
tranaaetloa:
NONE (HO raportafila
lACoaa, aaaaca, or
Lavada Church
Sarramore 2
1
1
Trammel 1
Trammel 2
Trammel 3
Trammel i
N. Jonesville 1
N. Jonesville 2
N. Jonesville 4
10
N. Jonesville 6
Texas
12
KnlghCon 1
13
Knighton 2
14
Kniehlon 8
15
Lucille 1
It
Jonesville #21
" StePle #1
11
Steele 112
IS
30
I Incnaa/CAln Coia.: »-il,000 or laai »-Sl,001 ts S2,5C0 C-S:,!C1 to 5,000 O-SS.OOl to JIS.OOO
rsaa Col. Bl ( D41 E-SIS.OOI to 550,000 r»S50.C0-. to S'-C?,CCO C-S:::,CC: to SI, 000, 000 B*Hora thao ^1 ooo.otu
2 V4^ua Cooaa; J-S15,0CC or laaa K-SI5,C,^1 zc SiO,0:j 1-S:.,:.l to 5100,000 K-S100,001 to iz50,ui 1
(Saa Col. c: ( 031 11-5330.001 to SSOCOOO (>-5300,001 to !-.,0CO,OC0 ?-l'or. •-^•n Sl.OOO.OOO
i V4ioa HatJioo Codaa: Q"Apprai.aal R-Coat < raal aitata on.y) S'Ajsaasoant t-Caaa/Harkat
(Saa Col. C3) U-BooK Valua V-Otbar w*Ssti.=atad
'- ' W
1037
FlNAiNCIAL DISCLOSURE REPORT (cont'd)
■•■■ of P«rsoa Bapoz-:.:.^
ROBERT M. PAS523
OaC« of Ropers
January 2? ,
VII. INVESTMENTS and TRUSTS - income, value, transactions, (includes those of spouw
and dependent children; see pp. 18-27 of Instructions.)
D«M:rlpUAn of >^M»Z*
(lacluillng OTiac UMmmzMj
lndlc«c«, wtMTw appLicftbls. ownttr oC
•(;)• toe iQiat o«»«c»bIp of noor:- .
laq iaaxvidami mnC uncnmm, -(SI* for
••p«cac« ewnaratup by apoua*. '(3C)'
tor awa«caiu.p &y dap«nd«ar caild.
Plac* •fX;' afrar aach aaaac
ai— tjt craa pr^oc d^.aclaaura.
a.
lAcona
tturtna
rapor^lcg
pariec
c.
Croaa v«£aa
*!. anc o:
raoorrir.q
paricc
D.
T^masac^loca during rvpoxxla? parlod
11)
«at..
Catia-
U; r.)
r«oT OC Csca*
Valua
Kacnodt
Czcm-
r.. 11 aaz. axavpc Lxtm discioaura
tjwv,»a-l. Sara: I
racaes- ; Say Csca'
I*)
Cain.
Cooa-
c»-a)
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1038
nNANCIAL DISCLOSL-RE REPORT (conid)
at Psrsoc Kapor"!^
sober: y.. p.-jik:-
Januarv 2S,
VIII. ADDITIONAL INFORMATION or EXPLANATIONS. ,h.diau pan or Repon.)
I have no remaining beneficial interest in =v parents' est2te= :3r Che reason that the asse<
have been distributed. I have continued tc discicse the izzz ;naf I am Fxeciitor of my parf. :
escares eacn year Because cne estate r.ave r.ofBeen cj.osec. - ar-ticipate "nraTctiey'vTTr'Tie'
closed in 1994.
Income and value codes reported on page i, line I under ?irT '.1 , is appiicablf in the
entire group of oil and gas iiirere'?ts and refrpcrs the best ; :. rL-rmat ion sv.Tilahle ir me i'
this time. It is my assumptioi: tnat while these veils a;e roir.z depler^d annually, the "-...r-
and value codes reported in the Amendtti 1992 Financial Disc.rsore "(.'piTr ;>hi>ii:d be aiiout ; tit
same tor 1993. Once igair, when r.; 1Q93 Income jx Rpturr n ^repaied and tiis Lndiv<du>>l
Working InteiOf^t amount*; are hirk(»n ri .wp b" wiiil .n.'amp r'npr z'n furnish rnc*-*^ <»'ac>ut*;s.
IX. CERTIFICATION.
Id compliance with the provisions of 2S I'.S.C § t55 and of Advisory Opinion No 57 of the Advisory Coramiitec on
Judicial Activicies, and to the best of my Icsowledgc ai the lime afie: reasonahie inquiry, I did not perform any adjudicaioiy
function in any bugation during the penod covered b> this repon in which L =:> spouse, or my minor or depeadenl childrfiD
bad a Qnanaal interest, as de&ned m Canon .^C(3)(c), in the outcome of suc^ litigation.
I certiN that all information given above (including information pertaining to sr/ spouse and minor or dependent khildreo,
if any) is accurate, true, and complete to the best of my laiowledee and belief, ud that any informalioo not reponed wa;
withheld because it met apphcabic statutory provisions permittin; non -disclosure.
I further certify tbal earned income from ouLside emuloymeni and honorary and the acceptance of gifts wbicb have been
reponed are in compliance with the prov'tsi^ns of 5 U.S.CjV app. 7, § 501 et. see, 5 U.S.C. § 7353 and Judicial Confen-ncf
regulations.
Signature
^Kikt/.::^
Date January 28, 199A
NOTE: A>rY INDIVIDUAL WHO KNOWINGLY ASV> WILFULLY FAL£2=^ES OR FAILS TO HL£ THIS REPORT
MAY BE SUBJFCT ro CIVTI. A.MD CRIMINAl. SANCTIONS (5 I'.S CA A?P 6, § 104, ANT) 18 U.S.C 5 1001.)
FILING INSTRfCIIONS:
Mail signet' original aud 3 additional copies to: Judici;: F.thia ("onuiiinee
Adtniristrathe Office of the
United Sutes Courts
Wa^r-nsnon, DC 20544
1039
UNITED STATES SENATE
QUESTIONNAIRE FOR JTJDICIAL NOMINEES
BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full Name: Ricardo M. Urbina
2. Address: List current place o£ residence and office
address (es) .
Office: H. Carl Moultrie, I
Courthouse of the District of Columbia
500 Indiana Ave., N.W.,
Washington, D.C. 20001
Residence: 5017 13th Street, N.W.
Washington, D.C. 20011
3. Date and place of birth.
January 31, 1946; New York City, N.Y.
4. Marital Status; (include maiden name of wife, or
husband's name). List spouse's occupation, ea^loyer's
name and business address (es).
Married to Coreen Marie Saxe who has a self -owned
business which she operates out of the home at the above -
referenced address.
5. Education; List each college and law school you have
attended, including dates of attendance, degrees
received, and dates degrees were granted.
Georgetown University Law Center:
Washington, D.C.
Juris Doctor Degree
August 1967 to May 1970
Degree granted on: May '70
Georgetown University:
Washington, D.C.
Bachelor of Arts Degree
September 1963 to May 1967
Degree granted on: May '67
6. Employment Record: List (by year) all business or
professional corporations, companies, firms, or other
enterprises partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you
were connected as an officer, director, partner,
proprietor, or employee since graduation from college.
1040
JUDICIAL
April 1981 D.C. Superior Court: Associate Judge
to present
ACADEMIC
August- The George Washington University
December 1993 (The National Law Center)
Adjunct Professor
August 1982- Oeorgetotm U&iversity Law Center:
December 1982 Adjunct Professor,
January 1974- Howard University School of Law:
March 1981 Professor of Law and Director of
Criminal Justice Program
1976 & 1978 National Institute of Trial Advocacy:
Instructor
1976 Antioch School of Law: Adjunct Professor
LEGAL PRACTICE
August 1973- Urbina: Solo practitioner
January 1974
July 1972- Urbina & Libby: Partner
July 1973
May 1970- Public Defender Service for the District
June 1972 of Columbia: Trial Attorney
Military Service; Have you had any military service? If
so, give particulars, including the dates, branch of
service, rank or rate, serial number and type of
discharge received.
No.
Honors and Awards; List any scholarships, fellowships,
honorary degrees, and honorary society memberships that
you believe would be of interest to the Committee.
I attended Georgetown University (C '67) on a full four
year scholar-athlete scholarship in my capacity as a
track and field athlete.
Bar Associations; List all bar association, legal or
judicial -related committees or conferences of which you
are or have been a member and give the titles and dates
1041
o£ any offices which you have held in such groups.
LEGAL
Membership in:
American Bar Association:
Special Committee on Youth Education for Citizenship
Commission on Public Understanding About the Law
Hispanic National Bar Association
D.C. Hispanic Bar Association
National Bar Association
Washington Bar Association
Bar Association of the District of Columbia
(Board of Directors 1974-1975)
Women's Bar Association
Fahy Inns of Court (Emeritus)
The Counsellors of Washington, D.C.
Council for Court Excellence (Board Member)
Phi Delta Phi Legal Fraternity
COMMITTEES
Member: D.C. Superior Court Clerk of the Court
Selection Committee (December 1993-
January 1994) ;
Chairman: D.C. Superior Court Spanish Language
Education Committee (1992-present) ;
Chairman: D.C. Superior Court Criminal Justice Act
Disciplinary Committee (1990 -present) ;
Chairman: Access to Justice Committee for panel
presentation in 1992 D.C. Courts Judicial
Conference;
Chairman: D.C. Courts Racial Ethnic Task Force
Court Personnel Subcommittee (1991-92) ;
Chairman: Child Support Guideline Committee
(July 1985-February 1988)
10. Other Memberships; List all organizations to which you
belong that are active in lobbying before public bodies.
Please list all other organizations to which you belong.
None
11. Court Admission; List all courts in which you have been
admitted to practice, with dates of admission and lapses
if any such memberships lapsed. Please explain the
reason for any lapse of membership. Give the same
1042
information for administrative bodies which require
special admission to practice.
Courts Date
United States Supreme Court April 1980
District of Columbia Court of Appeals April 1972
United States District Court
for the District of Columbia January 1971
United States Court Military Appeals December 1970
United States Court of Appeals for the
District of Columbia Circuit December 1970
I HAVE NOT ACTIVELY PRACTICED LAW SINCE FEBRUARY 1981.
12. Pxiblished Writings: List the titles, pxiblishers, and
dates of books, articles, reports, or other published
material you have %n:itten or edited. Please supply one
copy of all published material not readily available to
the Committee. Also, please supply a copy of all
speeches by you on issues involving constitutional law or
legal policy. If there were press reports about the
speech, and they are readily available to you, please
supply them.
I co-authored an article with Margaret Beyer, Ph.D.,
entitled "An Emerging Judicial Role in Family Court"
(copy appended) published by the American Bar
Association. (ATTACHMENT #1)
13. Health; What is the present state of your health? List
the date of your last physical examination.
Excellent. My last physical examination was in December,
1993.
14. Judicial Office; State (chronologically) any judicial
offices you have held, whether such position was elected
or appointed, and a description of the jurisdiction of
each such court.
I am currently an Associate Judge in the Superior Court
for the District of Columbia, a position to which I was
presidentially appointed in April, 1981. This court
exercises trial court jurisdiction over D.C. Code
criminal, civil and family matters.
I sat as a judge of the D.C. Court of Appeals by special
designation and authored the appellate decision in Abbey
y. Jackson, et al . 483 A. 2d, 330, 1984.
The Chief Judge appointed me to serve as Presiding (Chief
1043
Administrative) Judge of the Family Division for the
District of Columbia Superior Court from July 1985 to
February 1988. In this capacity, I assisted the Chief
Judge's formation of policy within the division,
ministered to the management needs of the judges and
commissioners handling family cases, chaired the
committee which formulated the Child Support Guidelines
for the District of Columbia and dealt with other
branches of government as the representative of the Chief
Judge in an effort to provide cooperative interaction
when needed.
15. Citations; If you ar* or have been a judge, provide:
(1) citatione for the ten noat significant opinions you
have written; (2) a short suBonary of and citations for
all appellate opinions where your decisions were reversed
or where your judgment was affirmed with significant
criticism of your substantive or procedural rulings; and
(3) citations for significant opinions on federal or
state constitutional issues, together with the citation
to appellate court rulings on such opinions. If any of
the opinions listed were not officially reported, please
provide copies of the opinions. (ATTACHMENT #2)
(1)
Name of Case
la . Abbey v. Jackson
lb. In Re O. B.
Ic . In Re Jerry M.
Orders J, K & P
Citation Wo.
483 A. 2d 330
(D.C. App. 1984)
542 A. 2d 1216
(D.C. App. 1988)
580 A. 2d 1270
(D.C. App. 1990)
Id . Norman v. Sabaco. Inc.
et ■ at. V. Kim et . al..
90-CA-14345
le . Habib v. Thurston
If. U.S. V. Alston
L&T 77391-83
580 A. 2d 587
(D.C. App. 1990)
ig-
ih.
Martin v. Gennet,
et. al..
89-CA-10268
The 2800 Wisconsin Ave. Condominium Unit Owner's
Association v.
Inc ■ et ■ al . .
Brisk Waterproofing Company.
90-CA-6670
li . Winston v. Zeitz.
PS No.3060-91f
1044
(2) Citations and summaries on cases %diere the trial
court's decision was reversed and remanded^;
2a. Aronoff v. The Lenkin Company and Lerner
Enterprises Limited Partnership.
618 A. 2d 669 (D.C. App. 1992):
The Superior Court upheld cancellation of a
contract for the purchase and sale of a D.C.
limited partnership and ordered that a one million
dollar deposit (originally in the form of a letter
of credit) be returned to the purchasers. The
trial judge ruled that by failing to tender
insurable title to the limited partnership's
realty, the sellers had not complied with an
express condition precedent both to the purchasers'
duty to perform at closing and to the sellers' own
right to declare the deposit forfeit; therefore,
they had no legal authority to draw down on the
letter of credit. The Court of Appeals rejected
the sellers' insurability argument in its broad
form, but held that the trial judge did not address
adequately a provision of the contract permitting
the sellers, at closing, to arrange for fulfillment
of any unsatisfied condition- -such as insurable
title- -to the "reasonable satisfaction" of the
purchasers. The Court of Appeals also held that
the judge must consider further whether the
purchasers prevented the performance of the
condition precedent.
2b. Faulkner v. Government Employees Insurance Company
(GEICO) .
618 A. 2d 181 (D.C. App. 1992):
The appeal involved the application of res judicata
to two temporally separated events. The first was
an automobile accident in which appellant was
injured. He subsequently brought suit on his no-
fault insurance policy against his insurer,
appellee. Government Employees Insurance Company
("GEICO"). The second was GEICO's cancellation of
appellant's insurance policy in alleged retaliation
against appellant for bringing the litigation.
Following the cancellation of his policy, appellant
brought suit against GEICO seeking damages and
reinstatement of the policy. With this claim the
appellant coupled two other counts involving
matters relating to the prior litigation. The
trial court dismissed all three counts as barred by
res judicata. The Court of Appeals affirmed the
dismissal of the latter two counts, but reversed
Cases denoted with an asterisk (*) were remanded but net
reversed from the Court of Appeals.
1045
with respect to the count of alleged wrongful
cancellation of the policy. The case was remanded
for further proceedings on the claim of wrongful
cancellation of the policy.
2c. Shaff V. Skahill. 617 A. 2d 960 (D.C. App. 1992):
Having participated in consensual, binding
arbitration proceedings, appellant contended that
the trial court erred by denying confirmation of
the arbitrator's award of damages in his favor in
the absence of legally sufficient grounds to vacate
the award. The Court of Appeals agreed, and
accordingly remanded the trial court's order for
the entry of an order confirming the arbitrator's
award.
2d. Johnson v. United States.
613 A. 2d 1381 (D.C. App. 1992):
Appellant Johnson was convicted by a jury of
seventeen counts of forgery and seventeen counts of
uttering forged checks, and one count of first
degree theft. On appeal, he contended principally
that there was a constructive amendment of the
indictment counts charging forgery, and that he was
deprived of his right to a fair trial because
repeated references to his exercise of his right to
remain silent. The Court of Appeals agreed that
because the indictment was constructively amended,
appellant's forgery convictions were reversed, but
otherwise found appellant's contentions
unpersuasive .
2e . Smith v. United States.
602 A. 2d 1080 (D.C. App. 1992) :
Appellant was charged with armed robbery of Ui Suk
Chu; assault while armed of Myong Chu, with intent
to rob Ui Suk Chu; and assault while armed of
Ronald Ziegel, with intent to rob Ui Suk Chu. The
jury found Smith guilty on all counts. Smith was
sentenced to six to eighteen years for armed
robbery, and four to twelve years on each count of
assault while armed, all sentences to be served
consecutively. On appeal. Smith claims that
evidence produced at trial was insufficient to
support the two convictions for assault while
armed. The jury was given the standard assault
instruction, which encompasses attempted battery
assault only. Though the government's evidence
could support an assault conviction on an intent -
to-frighten theory, the jury received no such
instruction. Therefore, Smith argued, his assault
convictions must be reversed for insufficiency cf
1046
the evidence, and that the Double Jeopardy Clause
of the Fifth Amendment bars retrial. The Court of
Appeals reversed and remanded to the Superior Court
with directions to enter judgement of acquittal on
the two assault while armed counts. The case was
remanded for resentencing.
2f.* Short V. United States.
No. 90-744 (D.C. App. 1992):
A jury convicted appellant of assault with a
dangerous weapon, a lesser included offense of
assault with intent to kill while armed, mayhem
while armed, and carrying a pistol without a
license. Appellant contended that he was
prejudiced because: (1) two government witnesses
failed to testify after the prosecutor indicated
they would in her opening statements; (2) a
government witness refused to testify after
claiming his Fifth Amendment privilege to remain
silent and expressing his fear of reprisal in front
of the jury; (3) during the defense's cross-
examination of the complaining witness, the jury
learned that the witness who subsequently refused
to testify had also previously identified appellant
as the assailant. Appellant also argued that the
trial court abused its discretion when it allowed
the government to introduce into evidence the
complaining witness' redacted medical records. The
Court of Appeals affirmed the judgement, but
remanded the case for resentencing to account for
the merger of the conviction for mayhem and for
assault with a dangerous weapon.
2g . Guadaloupe v. United States.
585 A. 2d 1348 (D.C. App. 1991)
DISSENTING: J. BELSON
Appellant Guadaloupe appealed from his conviction
of possession of cocaine with intent to distribute
on the ground that the drugs were obtained by an
unconstitutional search and seizure. The trial
judge denied appellant's motion to suppress,
concluding that the police had not violated
appellant's Fourth Amendment rights during the
course of two successive confrontations during a
twenty- five to thirty minute period as appellant
and a male were leaving Union Station after
arriving on a train from New York City. The judge
also found that the appellant had voluntarily
consented to the body search. The Court of Appeals
found that as a reasonable person in appellant's
circumstances would not have felt free to leave
when confronted for a second time to allow a body
8
1047
search after having allowed a baggage search, there
was not a consensual search and in the absence of
articulable suspicion of criminal wrongdoing, the
seizure of appellant violated the Fourth Amendment
and the judgement must be reversed.
2h. United States v. Alston.
580 A. 2d 587 (D.C. App. 1990):
The issue on appeal was whether the Council of the
District of Columbia had authority under the D.C.
Self -Government and Governmental Recognition Act
(Home Rule Act) , to pass successive, substantially
identical emergency acts to preserve the status quo
while identical legislation enacted by the Council
after two readings was pending before Congress for
review. Appellee Alston was charged in two
separate multi -count indictments with possession
with intent to distribute cocaine while armed, and
possession of a firearm during the commission of a
dangerous offense. In granting his motion to
dismiss these charges of the indictments, the trial
judge ruled, relying on the decision of the Court
of Appeals in District of Columbia v. Washington
Home Ownership Council. Inc., 415 A. 2d 1349 (D.C.
1980) , that upon the expiration of the "Law
Enforcement Emergency Amendment Act of 1989" the
D.C. Council was without authority to pass a second
substantially identical emergency act and to
maintain the status quo until an identical
temporary act toolc effect following congressional
review. The Court of Appeals held that the federal
savings provision of 1 U.S. Code Section 109
applies to emergency acts of the D.C. Council and
preserved appellee's prosecution for offenses under
the First Emergency Act. The cases in the appeal
were remanded to the trial court with instructions
to reinstate the dismissed charges in accordance
with the Court of Appeals decision.
2i. District of Columbia v. Jerrv M. et . al . .
580 A. 2d 1270 (D.C. App. 1990) :
In this appeal, the District of Columbia contends
that the judge erred in ordering (1) five secure
decentralized facilities that would replace
existing secure institutions, (2) a cap of 60 on
the number of juveniles in residential placements
outside the District, where there is no
representative plaintiff and the question had not
been at issue in the case, (3) a case management
system that is the functional equivalent of a
system previously agreed upon by the parties, and
(4) broad-ranging management reforms in YSA. It
1048
further contended that the judge abused his
discretion by ordering caps on the number of
securely detained juveniles recommended by the
Panel, but rejecting the Panel's recommendation for
judicial reforms necessary to achieve the caps.
The Court of Appeals concluded that the part of the
trial court's order regarding the provisions for
out of state placements, decentralization of secure
facilities, and management controls of YSA exceeded
its authority according to the consent decree . The
Court of Appeals upheld the trial court in all
other aspects. Accordingly, it affirmed in part
and reversed in part .
2j.* District of Columbia, et . al . v. Jerry M. et . al . .
500 A. 2d 1270 (D.C. App. 1990):
The case was on appeal from the trial court ' s award
of $63,497.58 in attorney fees to Donna Wulkan for
her work between June 8, 1988 and June 29, 1989, in
enforcing the District of Columbia's compliance
with a consent decree in the matter of the complex
and lengthy "Jerry M." litigation. The Court of
Appeals held that Ms. Wulkan' s seirvices were fully
compensable, but vacated the award in part and
remanded to the trial court for further findings as
to the reasonableness of the fee award.
2k. Williams v. United States.
551 A. 2d 1353 (D.C. App. 1989):
Defendant was found in criminal contempt during his
trial for assault and later conviction of assault
by jury before the Superior Court, and defendant
appealed. The Court of Appeals held that: (1)
defendant could be held in contempt for actions
occurring outside court's presence; (2) witness'
testimony during contempt hearing was not unsworn
and incompetent; (3) trial court's failure to
mention civil contempt until end of contempt
hearing was plain error; and (4) lack of unanimity
jury instruction during assault trial was not
erroneous. Affirmed in part and reversed in part.
21 . Gooding v. United States.
529 A. 2d 301 (D.C. App. 1987):
DISSENTING: J. FERREN
The Court of Appeals reviewed the denial, after a
hearing, of the appellant's Rule 32(e) motion to
withdraw his plea of guilty to kidnapping. In the
trial court, appellant argued that his plea was
involuntarily entered and that it was fair and just
that it be withdrawn. On the record, the Court of
Appeals concluded that withdrawal of the plea
10
1049
should have been permitted as fair and just under
the circumstances, and also that the plea was
accepted without an adequate inquiry pursuant to
Rule 11 . The Court of Appeals reversed and
remanded on these independent grounds .
2m. Hawkins v. Lynnhill Condominium Unit Owners
Association. 513 A. 2d 242 (D.C. App. 1986):
The Lynnhill Condominium Unit Owners Association
sued applicant Hawkins for overdue condominium
fees, and obtained a default judgement against her.
Hawkins appealed from an order denying her motion
to set aside the default judgement. The Court of
Appeals found that further inquiry was required as
to an unresolved factual dispute over whether
Hawkins was served with notice of the claim against
her; accordingly the case was reversed and remanded
for further proceedings.
2n. Charles v. Charles, 499 A. 2d 451 (D.C. App. 1986) :
Court -appointed defense counsel in this case
contended that, absent an applicable statute or
court rule, the trial court erred in assessing
attorney's fees against him personally for failure
to comply with court orders to respond to
plaintiff's complaint. Based on Roadway Express.
Inc. v. Piper. 447 U.S. 752 (1980), the Court of
Appeals concluded the trial court had inherent
power to impose this sanction, provided the court
found counsel had acted in bad faith. Because the
court did not make such a finding, the Court of
Appeals affirmed in part and reversed in part.
2o. United States v. Evans. No. 85-986 (1/28/86)
(ATTACHMENT #3) Judgment Order:
The judgement of the trial court from which the
appeal was taken was reversed in accordance with
Gonzalez v. United States. 498 A. 2d 1172 (D.C.
1985) , and the cause was remanded for further
proceedings consistent therewith.
2p.* Shelton Jovner v. United States.
No. 83-1226 (D.C. App. 1986) :
On appeal from his convictions for assault with a
dangerous weapon and unlawful possession of a
pistol, appellant contended that the trial court
committed constitutional error in not granting his
counsel the right to examine the psychiatric
records of two complaining witnesses for the
purpose of cross-examining as to credibility. He
also argued that two remarks by the prosecutor in
closing argument were improper and thus warranted a
11
1050
mistrial. The Court of i^peals affirmed as to
those grounds, but remanded for vacation of one of
appellant's assault convictions due to the fact
that the evidence established that only one assault
occurred .
2q, Habib v. Thurston. 517 A. 2d 1 (D.C. App. 1985) :
A landlord appealed from three orders of the
motions court: (1) granting summary judgement for
the tenant in the action for possession, on the
ground that the landlord, by accepting rent for the
month after the notice to quit had expired, thereby
waived his right to demand possession; (2) awarding
the tenant attorney' s fees and expenses pursuant to
Superior Court Rule 37(a) (4), without a hearing, in
connection with the tenant's motion to compel
answers to interrogatories; and (3) releasing to
the tenant funds which she had paid into the court
registry under a protective order. The Court of
Appeals affirmed as to the first two orders but
reversed and remanded as to the third.
2r. Adlcins. et . al . v. Morton, et . al . .
494 A. 2d 652 (D.C. App. 1985):
A physician and hospital appealed from a medical
malpractice judgement. They challenged the trial
court's rulings excluding certain testimony from
two treating physicians whom appellants did not
list during the discovery process as expert
witnesses. The Court of Appeals held that the
testimony comprising facts and opinions one
physician acquired as an "actor or viewer" should
have been admitted on the issue of damages. They
further held that opinion testimony from the other
physician on the question of causation was
cumulative of the evidence presented on that
question and therefore was properly excluded.
Accordingly, the Court of Appeals affirmed as to
liability but reversed the award of damages and
remanded for a new trial on that issue.
2s. Bulls V. United States.
490 A. 2d 197 (D.C. App. 1985) :
A jury convicted appellant of assault with a
dangerous weapon, and sentenced him to 40 to 120
months imprisonment. He claimed on appeal that the
trial court erred in seating an alternate juror
after the jury had retired to deliberate. The
Court of Appeals found that the trial court's error
was prejudicial and reversed appellant's conviction
and remanded for a new trial .
12
1051
2t. A.C. Jamison v. S & H Associates.
487 A. 2d 619 (D.C. App. 1985) :
Landlord sued tenant for possession of apartment
after tenant failed to pay rent for seven months.
The trial court entered judgement in favor of the
landlord, and the tenant appealed. The Court of
Appeals held that the landlord was not entitled to
judgement of possession, regardless of tenant's
failure to comply with protective order, where the
landlord did not affirmatively prove that the
tenant waived his right to notice to quit or that
notice had been served. Reversed.
2u. Tavlor. et . al . v. Eureka Investment Corp..
482 A. 2d 354 (D.C. App. 1984):
Owners of condominium units brought declaratory
judgement action against owners, developers, and
manager of adjacent condominium, contending that
they were entitled to park without charge in
underground garage of adjacent condominium. The
trial court entered judgement in favor of
defendants, and condominium owners appealed. The
Court of Appeals held that condominium owners were
entitled to park without charge in garage of
adjacent condominium under the terms of "accessory
parking covenant" which had granted such parking
privileges in exchange for zoning exception.
Reversed and remanded.
2v.* Stephen Butler v. United States.
No. 83-1012 (D.C. App. 1984) :
After a jury trial appellant was found guilty of
taking indecent liberties with a minor child,
sodomy, and assault with intent to commit sodomy.
Appellant was sentenced to consecutive prison terms
of five to fifteen years for sodomy, and eighteen
to forty-four months for assault with intent to
commit sodomy. On appeal, appellant asserted, with
regard to the sodomy charge, that the court erred
in admitting, as excited utterances, the hearsay
statements of the three year-old complainant, and
that there was insufficient corroborating evidence
to convict him of sodomy. Appellant also perceived
that the government engaged in prosecutorial
misconduct. Lastly, it is urged that the trial
judge erred in the course of sentencing, by not
making an express finding of "no benefit" under the
Federal Youth Corrections Act (FYCA) . The Court of
Appeals agreed that the trial judge did not make an
express "no benefit" finding in sentencing, but
found appellant's other contentions to be without
merit. The case was remanded to Judge Urbina for
13
1052
sentencing in compliance with the requirements of
the FYCA.
2w.* Hinton v. Community Services. Inc..
No. 82-1480 (D.C. App . 1983):
The appeal stemmed from a suit for possession based
on non-payment of rent brought by appellee -landlord
against appellant -tenant . Appellant filed a motion
for summary judgement and the trial court found
that appellant was no longer in possession of the
premises, dismissed appellee's suit for possession
and ordered a hearing to be held to determine the
disbursement of funds which appellant deposited
into the registry of the court pursuant to a
protective order. Appellant appealed claiming that
a judgement should have been entered for her and
that she should have been awarded (1) return of
rents which she paid into the registry of the court
pursuant to a protective order and (2) a return of
a pre- lease deposit, with interest, which she made
at the beginning of her tenancy. The Court of
Appeals affirmed the dismissal of the suit for
possession, dismissed all other claims on appeal
for lack of jurisdiction and remanded the case for
further proceedings on appellant's counterclaim.
(3) Citations for significamt opinions on federal or
state constitutional issues:
3a . United States v. Alston.
580 A. 2d 587 (D.C. App. 1990)
16. Pxiblic Office; State (chronologically) any public
offices you have held, other than judicial offices,
including the terms of service and whether such positions
were elected or appointed. State (chronologically) any
unsuccessful candidacies for elective public office.
None
17 . Legal Career;
a. Describe chronologically your law practice and
experience after graduation from law school
including:
1. whether you served as clerk to a judge,
and if so, the name of the judge, the
court, and the dates of the period you
were a clerk;
N/A
14
1053
2. whether you practiced alone, and if so,
the addreaaes and datea;
2a. August 1973 - January 1974
Urbina
1629 K Street, N.W. ,
Washington, D.C.
3. the dates, names and addresses of law
firms or offices, con^anies or
governmental agencies with which you have
been connected, and the nature of your
connection with each;
3a. January 1974 - March 1981
Howard University School of Law
2900 Van Ness Street, N.W.
Washington, D.C. 20008
Professor of Law; Director of
Criminal Justice Program
3b. July 1972 - July 1973
Urbina & Libby
1819 H Street, N.W.
Washington, D.C.
Partner
3c. May 1970 - June 1972
Public Defender Service for the
District of Columbia
4 51 Indiana Ave., N.W.
Washington, D.C. 20001
Trial Attorney
1. What has been the general character of
your law practice, dividing it into
periods with dates if its character has
changed over the years .
February 1974 to February 1981:
Approximately seventy percent civil and
twenty-five percent criminal (this does
not include criminal cases I vicariously
managed through my supervision of
Criminal Justice Clinic students) .
July 1972 to January 1974:
Even distribution between criminal and
civil cases.
June 1970 to June 1972:
15
1054
Public Defender Service - all criminal
practice .
My civil practice consisted largely in
contract, real estate and personal injury
work. I also represented police officers
before the District of Columbia
Metropolitan Police Department Trial
Board.
2. Describe your typical former clients, and
mention the areas, if any, in which you
have specialized.
My typical civil clients were persons
usually of medium income who were in need
of counseling regarding contracts
relating to the sale or purchase of real
estate; or persons who had suffered
personal injuries and desired redress for
damages .
My typical criminal client was usually an
indigent person charged with a felony
offense or an individual who was the
subject of some grand jury probe.
In addition to the criminal area,
contracts and personal injury were my
areas of specialization.
1. Did you appear in court frecjuently,
occasionally or not at all? If the
frequency of your appearances in court
varied, describe each such variance,
giving dates .
Yes, I had appeared in court regularly
both in connection with my supervision of
Howard Law School Criminal Justice
students and in connection with cases I
had handled privately.
2. What percentage of these appearances was
in:
(a) federal courts: About ten
percent (10%) of these appearances
were in the United States District
Court for the District of Columbia.
(b) state courts of record: About
eighty-five (85%) of these
16
1055
appearances were in the Superior
Court of the District of Columbia.
(c) other courts: About five
percent (5%) were in administrative
courts, specifically, the District
of Columbia Metropolitan Police
Trial Board, the Alcoholic Beverage
Commission and Bureau of Motor
Vehicles.
3. What percentage of your litigation was;
(a) civil; Approximately seventy
percent (70%) of my litigation had
been civil .
(b) criminal; Approximately twenty-
five percent (25%) of my litigation
had been criminal (not taking into
account criminal cases I vicariously
manage through my supervision of
Criminal Justice Clinic students) .
4 . State the number of cases in courts of
record you tried to verdict or judgment
(rather than settled) , indicating whether
you were sole counsel, chief counsel, or
associate co\in8el.
To the best of my recollection, I tried
twelve (12) cases to verdict or judgment.
In four (4) of these case I acted as
chief counsel; in seven (7) of these
cases I acted as sole counsel; in one (1)
of these cases I acted as associate
counsel. In addition, I supervised ten
(10) trials to verdict or judgment.
5. What percentage of these trials was;
(a) jury: Fifty percent (50%) of these
trials were jury.
(b) Non-jury: Fifty percent (50%) were
non-jury.
18. Litigation: Describe the ten most significant litigated
matters which you personally handled. Give the
citations, if the cases were reported, amd the docket
number and date if unreported. Give a capsule svuianary of
the substance of each case. Identify the party or
17
1056
parties whom you represented; describe In detail the
nature of your participation in the litigation and the
£lnal dlspoeltlon of the case. Also state as to each
case
(a) the date of representation;
(b) the name of the court and the name of the
judge or judges before whom the case was
litigated; and
(c) the individual name, addresses, and telephone
numbers of co-counsel and of principal coxinsel
for each of the other parties.
I do not have a data base or a sufficient memory from
which to retrieve the ten most significant cases I
litigated before taking the bench. However, I can
furnish the requested information for five of the most
significant cases I have tried during my career. They
are as follows:
United States v. Wallace Smith. Robert Schoop & Wavne E.
Purcell. Criminal Ko. 1299-70
Presiding Judge: Joseph Waddy, United States District
Court for the District of Columbia.
Charge : Assault on a Police Officer (one count on each
defendant) .
Opposing counsel : Philip Kellogg, A. U.S. A., presently
located at 1776 "F" Street, N.W. , Washington, D.C., tel :
202-898-0722.
Counsel for Co-defendants: Landon G. Dowdey (on behalf
of Schoop), 2000 L Street, N.W., Washington, D.C. 20036;
tel: 202-416-1626.
Wilfred Milofslty (on behalf of Wallace), 1025 Vermont
Avenue, N.W. , Washington, D.C, tel: 301-530-9161
Trial Date Period: June 22 to June 27, 1972.
Final Disposition: Not Guilty
The case arose out of charges lodged before the Court
Reorganization Act and involved three defendants alleged
to be members of the Blac)c Panther Party. I represented
one of the defendants, Wayne E. Purcell. The events
which gave rise to the charges too)c place outside what
was then the local Blac)c Panther Headquarters located in
Washington, D.C. All three defendants claimed self-
defense . The government put on a very strong case
producing more than a dozen police witnesses to the
events. In addition to the three defendants, the defense
put on a variety of witnesses who observed the incidents
of police brutality which precipitated the fracas. The
case was highly publicized with daily progress reports
presented to the public in the print and broadcast media.
It became clear early in the proceedings that counsel had
18
1057
very divergent views about how the trial should proceed.
During the government's presentation, one counsel did not
attempt to restrain his client from launching into
political outbursts in the jury's presence. Another
lawyer conducted himself in such a disinterested fashion
as to give me concern about how his performance might
affect the success of my client's case. As the
government's case unfolded, the defendants became openly
more belligerent towards the prosecution, the court and,
to some extent, their counsel. Before the defense began
its case, I prevailed on my co-counsel to work more as a
team and to discourage their clients from further
disruptive behavior during trial. The result was that as
the defense came to light the real events surrounding the
violent confrontations surfaced, and an effective
complement of closing arguments moved the jury to a
prompt acquittal on all counts for each defendant.
Since then, the lessons of that trial have helped me
convey important lessons to the students I have trained
in the defense of criminal cases. As a judge I have
thought back many times in review of how Judge Waddy
handled this highly inflammatory case, and what I would
do if confronted with a similar challenge. The whole
experience stands out as one of the most instructive of
my career on the handling of volatile people and issues
during a high profile case.
James E. McCall v. C.L. Swain. Superintendent. Lorton
Reformatory, et al . Habeas Corpus No. 37-73.
Presiding Judge : Gerhard Gesell, United States District
Court for the District of Columbia.
Opposing Counsel: John Suda, Assistant Corporation
Counsel (now D.C. Superior Court Judge); H. Carl
Moultrie, I, Courthouse of the District of Columbia,
Washington, D.C. 20001; tel : 202-879-4873.
Trial Date: July 17, 1973.
Final Disposition: Petitioner's request for a writ of
habeas GRANTED.
Case upheld on appeal : McCall v. Swain. 166 U.S. App. DC
214, 510 F.2d 167.
The petitioner, James Elliot McCall, while represented by
previous counsel, was tried and convicted on charges of
armed robbery before Judge Gesell. Subsequent thereto.
Judge Gesell reduced Mr. McCall 's previously imposed
sentence pursuant to my Motion for Reduction of Sentence.
After several months Mr. McCall, a man of the Muslim
faith, claimed that he was deprived of the right to
practice his beliefs within the Lorton institutional
setting. This deprivation became the subject of the
petition for habeas corpus I filed on behalf of Mr.
19
1058
McCall. The petition was opposed by the District of
Columbia and challenged on jurisdictional grounds, and
Chief Judge Sirica issued an Order to Show Cause why the
petition should not be granted. The hearing on the
petition focused on the underlying factual and overriding
jurisdictional issues.
This case provided my first close association with a
Black Muslim. I admired Mr. McCall 's religious
convictions and developed an appreciation for his outrage
at the institution's refusal to permit him the use of the
simple accessories of his faith - a prayer rug, robe and
the daily opportunity to pray in his own fashion.
In light of the law which appeared to support the
respondent's position which challenged the jurisdiction
of the United States District Court over the matter, the
petitioner would have had to urge a precedent -making
interpretation of existing statutory authority in order
to prevail .
The petitioner and the judge each impressed me with their
views of the basic human rights involved. Mr. McCall
never wavered in his belief that practicing his religion
during his period of incarceration was a right guaranteed
to him under the law. Judge Gesell untangled the
complexities of the controversy, went right to the heart
of the factual and jurisdictional issues and promptly
issued a decision which in granting the petition evinced
compassion and his profound respect for constitutional
protection.
United States v. Ernest White. Criminal Nos . 44482-73;
56927-73.
Charge : Second Degree Murder.
Presiding Judge: James Washington, Superior Court of
D.C.
Opposing Counsel : Charles Flynn, A. U.S. A., United States
Attorney's Office, Judiciary Center, 555 4th Street,
N.W., Washington, D.C. 20001, tel : 202-514-7168.
Trial Period: July 1974 for five full days of trial.
Final Disposition: NOT GUILTY.
Mr. White was charged with second degree murder alleged
to have been perpetrated in the course of an altercation
with a long-time associate. The defenses of self-defense
and defense of others were impaired by the uncontested
fact that the physical altercation had, to some degree,
subsided when the defendant re-emerged from his nearby
habitation with a knife which he plunged into the
deceased's heart. I was appointed to represent Mr.
White.
20
1059
The rigors of this trial brought into play a multitude of
evidentiary issues and tactical decisions. The
government presented several witnesses which it
ultimately sought to impeach. Hearsay evidence abounded.
Mr. White had a lengthy criminal record making it
impractical for him to testify. Mr. Flynn, then head of
his office's grand jury section, retained the case
personally after securing the indictment. In the end,
the jury would need to be convinced that the defendant's
continued retreat, because of prevailing conditions,
would have rendered him more likely to be the immediate
victim of serious bodily injury or death at the hands of
his assailant, the deceased. Engineering the evidence
and the advocacy toward this end proved one of the most
challenging tests of my career as a trial attorney.
Pamela Whitman v. William Cardinal Baum. et al. Civil
Action No. 0760-77. Action for Preliminary and Permanent
Injunction under 42 U.S.C. 1981.
Presiding Judge: Gerhard Gesell, United States District
Court for the District of Columbia.
Opposing Counsel : Daniel V. McEvily, Esq., (whereabouts
unknown) .
Trial Date: June 21, 1977.
Final Disposition: Settled During Trial; Dismissed with
Prejudice .
I brought this action on behalf of a nine year old
African-American child attending a Catholic school in
Maryland. Due to problems encountered in meeting
tuitional obligations, the child's mother, my secretary,
was advised that her child would not be permitted to
continue at the school despite the fact that payment,
though late, had been tendered. My investigation of the
facts revealed that Mrs. Whitman's past tuition payment
record was unmarred, and that other children similarly
situated due to late or defaulted tuition payment had not
been terminated. The factor distinguishing those
children from Mrs. Whitman's child was race. Efforts at
conciliation were flatly rejected by Reverend Kidd, the
principal of the school, who stated to me that his
decision to terminate the Whitman child was irrevocable.
The action was brought. After I called one witness, Mrs.
Whitman, the defense moved for a recess and during that
period settled the matter by agreeing to readmit the
child.
This case has special significance to me because, based
on the facts, I determined Mrs. Whitman and her child to
be the victims of subtly applied racial discrimination.
The fact that the institution involved was the Catholic
Church made the transgression worse in my view. As a
21
1060
Catholic educated in parochial schools, the outcome gave
me great personal satisfaction.
Gwendolyn Hemphill v. Daniel McDonald. District of
Columbia, et al . Civil Action No. 4375-77. Personal
injury and Loss of Consortium. Action Based on
Negligence, Assault & Battery (multiple counts) .
Presiding Judge: Paul R. Webber III, Superior Court of
the District of Columbia.
Opposing Counsel: William Earl, Esq., Assistant to the
Corporation Counsel, District Building, Washington, D.C.
20004, tel: 202-727-9350; and John Suda (now D.C.
Superior Court Judge) 500 Indiana Ave., N.W., Washington,
D.C. 20001, tel: 202-879-4873; Gerald D. Stoltz, Esq.
700 14th Street, N.W., Washington, D.C. 20005, tel: 202-
244-4250; and James W. Pressler, Jr., Esq., 1225 19th
Street, N.W., Suite #850, Washington, D.C. 20036, tel:
202-822-8384; on behalf of Daniel McDonald. Elliot
Adler, Esq., 1001 Pennsylvania Avenue, N.W., 6th Floor,
Washington, D.C. 20004, tel: 202-624-7265; on behalf of
John Wilson. John E. Scheuermann, Esq., 700 "E" Street,
S.E., Washington, D.C. 20003, tel: 202-547-9180; on
behalf of Alverta Munlyn. Co-Counsel for Plaintiff:
David Schreiber, Esq., 4550 Montgomery Ave. , Suite #760N,
Bethesda, MD 20814, tel: 301-951-1530.
Trial Period: September 11 to 21, 1978.
Final Disposition: Settlement After Plaintiff's Judgment
of $75,000 Was Set Aside.
Co-Counsel David Schreiber and I represented the
plaintiff in this personal injury case. The plaintiff
received injuries at the hands of a police officer of the
D.C. Metropolitan Police Department who, upon reporting
to the site of city council voting activities, was told
by an "informer" that the plaintiff was in possession of
a gun. The plaintiff and informer were working in
support of their respective candidates at the time. The
police officer approached the plaintiff and applied force
in the course of conducting a search which revealed no
gun. The police officer, the District of Columbia,
Councilman Jerry Wilson and the informer as his alleged
agent were all charged with liability for the injuries
under various theories of assault, battery and
negligence. After eight days of trial the case was
delivered to the jury who, after more than two days of
deliberation, returned a verdict against the police
officer and the District of Columbia in the amount of
seventy-five thousand dollars on counts charging assault
and battery.
During the course of the trial the plaintiff introduced
evidence on the issue of the police officer's
22
1061
intoxication during the incident. Upon consideration of
a Motion for New Trial, wherein the defendants alleged
that this evidence had been admitted improperly, the
judge confessed error in admitting this evidence and
granted defendants motion. Due to the financial problems
experienced by the plaintiff, we accepted a settlement
offer made by the District of Columbia.
This longest and most complex of my civil trials afforded
me an intensive learning experience. Issues of damages
and proximate cause threatened the success of the
plaintiff's case at every stage. Counsel for the
District of Columbia raised every defense possible. But
it was the conduct of the judge in managing the rigors of
the trial that prompted me to consider seriously a career
on the bench. As I look back, it is clear to me that
Judge Webber's patience and painstaking effort to treat
the parties fairly and conduct the trial with dignity and
efficiency provided me with a model which I to this day
emulate .
Among the lawyers who may be able to express an opinion
on the quality of my judicial service by virtue of their
criminal, civil or family law practice before me in
recent years are :
Marna S. Tucker, Esq.
Feldsman, Tucker, Leifer, Fidell & Bank
Tel: (202) 466-8960
Donna L. Wulkan, Esq.
Tel: (202) 682-3909
Betty Hunter, Esq.
Former President of Superior Court
Trial Lawyers Association
Tel: (202) 783-7870
Rita Bank, Esq.
Feldsman, Tucker, Leifer, Fidell & Bank
Tel: (202) 466-8960
Cynthia McKnight, Esq.
MacLeay, Linch, Gregg & Linch
Tel: (202) 785-0123
Patricia Riley, Esq.
United States Attorney's Office
Sex Offense Unit
Tel: (202) 514-0495
23
1062
James F. Jordan, Esq.
Jordan, Coyne, Savits & Lopata
Tel: (202) 371-1800
J. Gordon Forester, Jr.
Greenstein, DeLorroe & Luchs
Tel: (202) 452-1400
Heather Shaner, Esq.
Tel: (202) 265-8210
Valinda Jones, Esq.
Assistant United States Attorney
Felony Trial Division
Tel: (202) 514-7494
Robert Spelke, Esq.
Assistant United States Attorney
Violent Crimes Unit
Tel: (202) 514-7436
Stephen Anthony, Esq.
Assistant United States Attorney
Felony Trial Division
Tel: (202) 514-7454
Douglas Evans, Esq.
Tel: (202) 399-5112
Ronald A. Goodbread, Esq.
Tel: (202) 966-4063
19. Legal Activities; Describe the most significant legal
activities you have pursued, including significant
litigation which did not progress to trial or legal
matters that did not involve litigation. Describe the
nature of your participation in this question, please
omit any information protected by the attorney-client
privilege (unless the privilege has been waived.)
19a. As Presiding Judge of the court's Family Division,
I chaired a committee made up of lawyers,
commissioners and judges charged with the
responsibility of devising a child support
guideline to be applied in all cases involving the
determination of how much a noncustodial parent
should pay for the support of his\her
child\children . The committee's membership
consisted of highly motivated individuals devoted
to the notion that child support awards should
attempt to put the child in a financial situation
24
1063
comparable to that which the child would have
enioyed had the child lived within the intact
lamUy unit. After two and a half years of
determined effort by the committee and a
declaration by the D.C. Court of Appeals that our
final product could not be promulgated as a court
rule the District of Columbia City Council adopted
our work and its product by enacting a practically
unaltered version of our Child Support Guideline in
the form of an statute which now governs the law ot
child support in the District of Columbia.
DesDite some initial resistance to its
implementation, the law is now broadly recognized
by the bar and public as a ^^ry positive
development in the attempt to build more
predictability into domestic relations litigation
and to ensure the protection of children s
entitlement to financial support from their
parents .
I am proud of my committee's accomplishment and
consider my work with the project ^^P^^^aps one of
the most significant activities of my judicial
career .
19b in 1986 the D.C. Superior Court established a
permanent Office of Interpreter Services devised to
serve hearing impaired and ^"^-^""f^^^^.f^^ftlf
litigants by providing interpreters for them in all
court proceeding. My participation in ^he effort
to provide this resource included making the Court
aware of the issue, defining the need to address it
and working with the Chief Judge, Court Executive
and bar associations to design its implementation.
19C In 1991-1992 I chaired the District of Columbia
'' cSurts Racial Ethnic Task Force ^ourt Personnel
subcommittee whose investigation and report
materially assisted the Task Force mission by
Tdenti?ying practices perceived by court employees
to constitute discrimination of a racial or ethnic
nature .
25
1064
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1. List sourceB, amounts and dates of all anticipated
receipts from deferred income arrangements, stock,
options, uncoopleted contracts and other future benefits
which you expect to derive from previous business
relationships, professional services, firm memberships,
former eiq>loyers, clients, or customers. Please describe
the arrangements you have made to be conqpensated in the
future for any financial or business interest.
As a member of the D.C. Retirement Fund I have the option
to cash in my current vested retirement annuity or to
wait until age 60 before beginning to receive my
retirement annuity monthly installments.
2. Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the
categories of litigation and financial arrangements that
are likely to present potential conflicts-of -interest
during your initial service in the position to which you
have been nominated.
I do not have any deferred income arrangement, stock,
options, uncompleted contracts or other future benefits
which I expect to derive from previous business
arrangements, professional services, etc. Therefore, I
cannot anticipate any potential conflict-of-interest
during my initial service as a federal judge.
If I perceive a problem of potential conflict of
interest, I will follow the directives of the Code of
Judicial Conduct for United States Judges.
3. Do you have any plans, commitments, or agreements to
pursue outside employment, with or without compensation,
during your service with the court? If so, explain.
It is possible that, if it meets with the approval of the
Chief Judge, I would seek to continue teaching trial
practice at one of the local law schools.
4. List sources and amounts of all income received during
the calendar year preceding your nomination and for the
current calendar year, including all salaries, fees,
dividends, interest, gifts, rents, royalties, patents,
honoraria, and other items exceeding $500 or more (If you
prefer to do so, copies of the financial disclosure
report, required by the Ethics in Government Act of 197 8,
may be substituted here) . I
SEE FINANCIAL DISCLOSURE REPORT
26
1065
JIO-IO
■Mv. 1/9]
FINANCIAL DISCLOSURE REPORT
teport ltequlr«d by Um Klklcs
Iteform Act of 1««9, rub. L. Mb.
101-194, Wnv— hr 10, 1M9
(5 U.ft.C.A. App. 6, SSlOl-112)
1. PttTboo llaportiDg (L«at &«■•, Clrat, alddl* Initial)
URBINA. RICARDO M.
4. Titls (Xrtlcl» III jodgM Indlcata «ctlv« or
••nlor statu*; Magistrate Judge* Indlcats
full- or part-ti»e)
Associate Judge
7. Cbaabars or Of flea Addraaa
500 Indiana Ave., N.W.
Chambers #3520
Washington, D.C. 20001
2. Court ox OryuilB«tlcMi
Superior Court for the District
of Columbia
5. Kaport Typ« (ch«ck approprlat* typa)
Y Mcmloatloo. D«f 'l-01-Q/i
Initial Aiuiiul Final
3. VXm of ■■port
3-25-9A
6. Kaportlog P«rlod
1992-1993
1994 (3/15/94)
6. On tha baala of tba Infozmatloo contalnod In thla Xaport, It
la. In By opinion. In coapllanca wltb appllcabla lawa and
ragulatlona
Ravlawlng offlcar slgnaturi
a fL<."«-«^«.<lc /H- LtjJL-t-^n^W^
IMPORTANT NOTES: The instructions accompanying this form must be followed. CompleU all parts,
checking the NONE box for each section where you have no reportable Informatloa. Sipi on last page.
I. POSITIONS. (Reponing individual only, see pp. 7-8 of Instructions.)
POSITION NAME OF ORGANIZATION/ENTTTY
D
NONE (No reportable poeltlone)
Board Member
Board Member
Board Member
RAjrrl Mgmher
Georgetown University College Advisory Board of Directors
After School Kids (A.S.K.) Program Advisory Board of Directors
Eugene and Agnes Meyer Foundation
II. AGREEMENTS. (Reponing individual only, see p. 8-9 of Insiruaions.)
DATE PARTIES AND TERMS
D
NONE (No reportable agreenenta)
As a member of the District of Columbia Retirement Fund, I am entitled to collect
a lump sum on accrued retirement to date, or I may defer collecting retirement
annuity installment payments until I reach age 60.
NON-INVESTMENT INCOME. (Reporting individual and spouse; sec pp. 9-12 of Insuuciions.)
DATE SOURCE AND TYPE GROSS INCOME
(Honoraria only)
(yours, not spouse's)
n
NONE (No reportable non-inveataient Incoae)
1993-1994
Income from rental apartment in home
$4,000 - 1993
$ $800 - 1994
5133,377.76 - 19'
1992-I993-I994 Superior Court of D.C. - Salary
$129,297.28 - 1992 $30,830.40 - 19'-- (3,
1993
1992-1993-1994
Georce Washington University Law Center - Teaching Position v ^,?QQiW
c;.-i1.Trv a<; employee nf Fitnpcg rnmpany fajnuH hy spniisi * tSJ
S
1066
FINANCIAL DISCLOSURE REPORT (cont'd)
• of r«r*on RAportlag
URBINA, RICARDO M.
OmtM of
3-25-9A
(Indodcs those to tpoose i
— • — ■ *- UM clAs
IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment
^rdmbuneiBcnts
SOURCE
I X NONE (Bo •oeb raporuklo nlaburMMou or gift*)
adcnt children: use the parcatbelicili '(S)' mod '(DC)' to indicMe reportable
by spouse utd dependent children, respectively. See pp.13-15 of losnnctioos.)
DESCRIFnON
V OTHER GIFTS, (includes those to spouse and dependent children; use the pirentbeticals "(S)' and "(DC)' to
indicate other gifts received by spouse and dependent children, respectively. Sec pp.15-16 of Instructioiis.)
H
SOURCE
NONE (Ho auch roportabl* gifts)
DESCRIPTION
VALUE
VI. LIABILITIES, (includes those of spouse and dependent children; indicate where applicable, person responsible
for liability by using the parenthetical '(S)' for separate liability of spouse, '(J)' for joint liability of reporting
Individual and spouse, and '(DC)* for liability of a dependent child. IScc pp.I6-18 orlnstmctions.)
n
CREDITOR
NONE (Ho roporubl* IKbllltlM)
Bank of Baltimore (J)
DESCRIPTION
VALUE CODE'
tonserfi Loati rrogiara
(Eduserv Winston Salem N.C.) (J)
Atlantic Residential Mortgage (j)
Corp I Baltlmora, Hi.
Home Equity Line of Credit
Educational Loan (son's college education)
Home Mortgage
Consern Loan Program
rF.diiserv Uin<;rnn Salt-m K.r.) (H
(paid off in 7/93)
Va . 1st Savings Bank - Petersburg, Va(J) Home Mortgage - paid off in 6/93
First Va . Bank - Falls Oiurch, Va. (,I) Auto Loan
Maryland Natl. Bank - Bait.
Md.
(J) Educational Loan - paid off 10/93
• VALUZ CODIS: J - SIS, 000 or iMt II • SIS, 001 U SSO.OOO L - $S0,O01 to S100,000
II - S2S0,001 to SSOO.OOD O - S500,001 to $1,000,000 P - Mora U1AI> 91,000,000
$100,001 to S2SO,000
loe?
FINANCIAL DISCXXKURE REPORT (oool'd)
ORBINA, RICARDO M.
Data of aayorx
3-25-94
VII. INVESTMENTS and TRUSTS - income, value, transactions, (indudc* cu^ or
■od dcscndcnt diUdini; tec pp. lS-27 of Instntctioas.)
(Cclialas mat cMata)
PlAM •(»»• •tXmr mmGb^*M9mv
ma^^ troa frloc 4lAcloaur«.
1.
doriag
«1 and ol
B.
TnaMotloM dorlag raportlai pHrlo*
(»-■)
'ST:
CD
'SJ3^
<J-»)
(il
ValM
Haclwd*
xr Bot, ■■ ifiT froB tflBcloavra |
Moatli
Mr
(1)
w3)
(4)
(Ml
1 NONE (Ho tmporXMhlm
1 Incoaa, aas«t.«. or
1 t^An»actlana 1
Riggs National Bank-Money Markel
A
int.
K
T
Rl^ National Bank-Savings Acct
A
int.
K
T
1
Aoartment (J) - in home
C
rent
K
R
4
S
6
7
B
9
10
11
12
13
14
15
16
n
1
le
19
20
1 lDCO««/C.ln CoOeo: A-Sl.OOO or lets fSl.OOl to S2.!.00 C.S2,!,01 to i.OOC D-El.OCJ to |''--°J'-
rsv Col. Bl 4 D«l E-Slt..OCil to SiC.OOC F-SiO,001 to 5100,000 C-SIOO.OOI tc Sl.OOC.OOC B-!"..» tr.JC ;i,uou,utiL
} vIU. Coae.: j'siiloOO or io.4 F^Ts'.OO: "to SiO.OOO L-SbO.OCl to SIOO.OOO »,= ;:CC,Ct: to 1250,000
iSm* Col. CI 4 D31 I»-S2b0.001 to $500,000 O-S500,001 to $1,000, OCT P»More th«" SI, 000,000
3 V.loo Hetho<! CO<Je«: ?'Ap;.nlsa: >-C05t (res; estal. on... S'Astc.ttcr.-. J _i»n;fi».».:.
(S« Col. C2) U-Boon V.10» V-Otner W-E^t J.«ti-<!
1068
FINANCIAL DISCLOSURE REPORT (coDt'd)
Msam of VarMHt Asportiag
DRBINA, RICARDO M.
Oru et I
3-25-94
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (indiot. p«i or Kqmt.)
IX. CERTIFICATION.
In compliance wiih ihe provisions of 26 U.S.C. § 455 and of Advisory Opinion No. 57 of Ihe Advisory Committee on
Judicial Activities, and to the best of my knowledge ai the time after reasonable inquiry, 1 did not perform any adjudicatory
function in any litigation during the period covered by this report in wthich I, my spouse, or my minor or dependent children
bad a financial interest, as defined in Canon 3C(3){c). in the outcome of such litigation.
1 certify that all information given above (including information pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the besi of my knowledge and bebef, and that any information not reported was
withheld because it met applicable suiutory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reponed are in compliance with the provisions of 5 U.S.C.A. app. 7, § 501 ei. seq., 5 U.S.C $ 7353 and Judicial Conference
regulations.
Signature
^r^
l^jSi^UI^
D«e 3-ZS'l^
NOTE- ANT INUrVIDUAL WHO ICNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCHONS (5 U.S.CA APP. 6. § 104. AND 18 U.S.C § 1001.)
FILING INSTRUCTIONS:
Mail signed original and 3 additional copies In:
Judicial Ethics Committee
Administrative Office of the
United Sutes Courts
Washington, DC 20544
1069
5. Please complete the attached financial net %rorth
statement in detail (Add schedules as called for) .
SEE ATTACHMENT #4
6. Have you ever held a position or played a role in a
political cas^aign? If so, please identify the
particulars of the caspaign, including the candidate,
dates of the campaign, your title and responsibilities.
No.
27
1070
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American
Bar Association' s Code of Professional Responsibility
calls for "every lawyer, regardless of professional
prominence or professional workload, to find some time to
participate in serving the disadvantaged." Describe what
you have done to fulfill these responsibilities, listing
specific instances and the amount of time devoted to
each.
My efforts at serving the disadvantaged have focused on
our troubled youth and the foreign-born.
In April of 1987 I helped to affect a merger between
Georgetown University and the D.C. Superior Court's
Juvenile Probation Department which took the form of the
A.S.K. Program which consists of Georgetown University
college students who dedicate their time and energy to
working with high risk juvenile offenders. The program
has prospered in size and efficacy to the extent that it
has become an institutional adjunct to the court's
probation department which has recently recorded the fact
that over 80% of the youths in the A.S.K. Program do not
get rearrested while on probation.
I am an active participant in the D.C. Public School
Adopt-A-Class Program which links me directly with a
class who visits me at the courthouse, spends the morning
watching court proceedings and then spends a brown bag
lunch period (usually in my jury room) asking me
questions and making observations about the morning's
proceedings. Once during the semester I spend a few
hours in the classroom addressing a topic and answering
questions prepared for me by the class in advance of my
arrival .
On an average of once every six week, classes from other
public and private schools also visit and engage me in a
question and answer sessions when time permits.
I have provided three years of active participation
during conferences of the National Symposium on Child
Victimization.
I serve on the board of directors of the Eugene and Agnes
Meyer Foundation which is a D.C. based philanthropic
organization which awards grants to deserving community
programs often addressing the needs of the
underprivileged .
In order to address the needs of the foreign-born and the
28
1071
hearing impaired, I worked with the D.C. Hispanic Bar
Association and others to bring into existence the Office
of Interpreter Services in the D.C. Superior Court. Its
specific function is to provide interpreter services for
the foreign-born and hearing impaired at every court
proceeding in which a witness or litigant is
communication impaired. The service has been very
successful and has led to a heightened interest on the
part of court personnel to learn Spanish. As chair of
the Spanish Language Education Committee I am pleased to
observe that more than a hundred court employees have
recently started classes held at the courthouse and
geared to enable non-Spanish speakers to acquire a
functional ability to use the language when servicing the
community engaged in court related business.
The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a
judge to hold membership in any organization that
invidiously discriminates on the basis of race, sex, or
religion. Do you currently belong, or have you belonged,
to any organization which discriminates -- through either
formal membership requirements or the practical
implementation of membership policies? If so, list, with
dates of membership. What you have done to try to change
these policies?
No.
Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal
courts? If so, did it recommend your nomination? Please
describe your experience in the entire judicial selection
process, from beginning to end (including the
circumstances which led to your nomination and interviews
in which you participated) .
Delegate Eleanor Holmes Norton assembled a very diverse
and distinguished cross section of members from the bar
and the community at large to form a Federal Judicial
Nominations Commission. Its seventeen members reviewed
the voluminous responses of each applicant to the
Commission's questionnaire and then interviewed nearly
forty interested members of the bar and bench for the
four judicial vacancies on the United States District
Court for the District of Columbia, and from the array,
the Commission advanced eight names to Ms. Norton who,
after interviewing the prospects, then selected four
individuals whose names she recommended to the President
for nomination.
On December 22, 1993 a select committee of the United
29
1072
states Department of Justice interviewed me for two hours
on matters related to my judicial candidacy.
On February 10, 1994 the Circuit Representative of the
American Bar Association Standing Committee on Federal
Judiciai-y met with me in furtherance of developing an
evaluation of me as a judicial candidate.
On March 23, 1994 President Clinton referred my
nomination to the United States Senate.
4. Has anyone involved In the process of selecting you as a
judicial noainee discussed with you any specific case,
legal issue or question in a aianner that could reasonably
be interpreted as asking how you would rule on such case,
issue, or question? If so, please explain fully.
No.
5. Please discuss your views on the following criticism
involving "judicial activism."
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
subject of increasing controversy in recent years. It
has become the target of both popular and academic
criticism that alleges that the judicial branch has
usurped many of the prerogatives of other branches and
levels of government.
Some of the characteristics of this "judicial activism"
have been said to include:
a. A tendency by the judiciary toward problem- solution
rather than grievance-resolution;
b. A tendency by the judiciary to employ the
individual plaintiff as a vehicle for the
imposition of far-reaching orders extending to
broad classes of individuals;
c. A tendency by the judiciary to is^ose broad,
affirmative duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
e. A tendency by the judiciary to impose itself upon
other institutions in the manner of an
administrator with continuing oversight
responsibilities .
30
1073
It is the judge's function to administer justice.
Vague as the notion of "justice" may be, the
judicial task is circumscribed by a process which
should not vary from case to case . The rule
requires that the judge look to the law - the
Constitution, statutes, legislative history and
decisional precedents, as the universe containing
the material from which a just result may be
fashioned. The parties are entitled to believe
that the judge will follow this rule rather than
the dictates of what might impress someone as a
just cause. Thus litigants may reliably anticipate
the core considerations from which the controversy
at issue will be resolved.
It is worth noting that some perceptions of courts'
overreaching evolve from the enforcement of consent
decrees. Many of these decrees are currently in
effect nationwide because of the class action trend
in litigation which involves local, state or
federal institutions as the defendants. As a
contract, a consent decree when breached invokes
the court's specific enforcement of the rule of law
which at times takes the form of coercive
procedures and directives for the monitoring of
institutions. This is an often unpopular task
beyond the expertise of any court. Such
involvement may create the appearance of
unwarranted judicial micro-management.
The court should interpret and apply the law as
created or illuminated by authority and precedent.
In this manner predictability, continuity and
stability become the staples for the administration
of justice.
31
1074
FINANCIAL STATEMENT
NET WORTH
Provide 4 complete, current (inanciji net worth slatemeni which itemizes in detail all asset* (includlr£ bank
•ccounls. r»al estate, socorities. trusts, investments, and other financial holdings) all liabilities (including «!ebts.
mortgaces. loans, and other financial obligations) of yoorstU. your spouse, and other Immediate men-ters of
your household.
ASSETS
UABIUTIES
Cash OA h«nd and In bankj
23
00(J
00
Nolo parabia to Unt» — Mcurad
Na<a payabta to banla — unM<urvd
Nolai paraWa to raUIVo f-^^^"'
Notaa pajrvbla to olhar*
AcoounH artd Ullt Cu*
Unpaid Inooma tai
Otrtar unpaid III and Int^rrst
Raal Mlala mortfifn payabia — *i4
achrdula
Ounal morttaiei and olhar Hani
payrbla
Othar dabts— ftamlia:
800 00
U.S. Co»»<Tim«n( ••cunOn — tdd
9
1
UO*d tacuriUn — add Khvdul*
Unll(t»d t*euntJ« — add «*>»duU
500IOO
Accounci and notn r»c*vablt:
■
CXi* from «•l•^^•t and triandt
mdt
IW^O
Doubtful
Raal aflala o-^ad — add tchadula
Raal rtUta moOgagu rwialvabia
Awloi and olh«f panonal proparty
000
260
00
1
10
1
660 00
Caih value — 1<(« Iniuranca
TJO"
TTTT
child
Ot^ar attat> — (lamlia:
67A
nnn
,
1
IRA accounts
automobiles
personal orooertv
75
000
fi7^
00
00
ToUl lUbiMic*
Nat worth
ToUl liablllUn and nt^ worth
231
ooo'oo
\IA
574 00
Total au«n
175
375
67A! 00
COHriNCCNT UAeiLITItS
CCNCAAL IKrORMATION
i
Ai »<\eor%*r. comakar or fuarsnio'
A/a anjr auati pladjad? (Add achad
uia )
Art you dalandant In any auiti or
i«i«i acOontr
Havi yoo avvi* CsLan ban«/vpicyr
NO
On l&jftai or oonuacts
l.c«il CUimi
NO
Prwition (oi fcOaral ioccma Tai
NO
Omar aprclal dabi
-
*(1) Home Equity Line of Credit
Bank of Baltimore
P.O. Box 896
Baltimore. MD 21298-9852
Account # 7299036
*(2) Atlantic Residential
Mortgage Corporation
P.O. Box 17207
Baltimore. MD 21203
Account « 092909
(line of credit and mortgage arc on
the same property)
1075
SENATE JUDICIARY COMMIITEE QUESTIONNAIRE
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. FULL NAME: (Include any former names used.)
Richard Anthony Paez
2. ADDRESS: List current place of residence and office address(es).
2534 Ivanhoe Drive
Los Angeles, CA 90039
Los Angeles Municipal Court
Division 15
110 N. Grand Avenue
Los Angeles, CA 90012
3. DATE AND PLACE OF BIRTH:
May 5, 1947
Salt Lake City. UT
4. MARITAL STATUS: (Include maiden name of wife, or husband's name.) List
spouse's occupation, employer's name and business address(es).
Married
Diane M. Erickson
International Business Machines
355 S. Grand Avenue
Los Angeles, CA 90071
Human Resources Advisor
5. EDUCATION: List each college and law school you have attended, including
dates of attendance, degrees received, and dates degrees were granted.
-1-
1076
COLLEGE:
Brigham Young University
Provo, UT
September 1965 - June 1967 and
September 1968 - June 1969
Bachelor of Arts (Economics) - June, 1969
University of California at Irvine
Irvine, CA
September 1967 - June 1968
LAW SCHOOL:
University of California at Berkeley (Boalt Hall)
Berkeley, CA
September 1969 - June 1972
Juris Doctor - June, 1972
EMPLOYMENT RECORD: List (by year) all business or professional
corporations, companies, firms, or other enterprises, partnerships, institutions
and organizations, nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or employee since
graduation from college.
A. California Rural Legal Assistance
629 Main Street
Delano, CA 93215
Staff Attorney-August, 1972 - January, 1974
B. Western Center on Law and Poverty
3701 Wilshire Blvd.
Los Angeles, CA 90010
Staff Attorney-January, 1974 - October, 1976
C. Legal Aid Foundation of Los Angeles
1550 W. Eight St.
Los Angeles, CA 90017
Senior Counsel-October, 1976 - January, 1978
Director of Litigation-January, 1978 - December, 1980
Acting Executive Director and Director of Litigation-
January. 1981 - May, 1981
-2-
1077
D. Los Angeles Municipal Court
110 N. Grand Avenue
Los Angeles, CA 90012
Judge-May, 1981 to present
7. MILITARY SERVICE: Have you had any military service? If so, give particulars,
including the dates, branch of service, rank or rate, serial number and type of
discharge received.
No.
8. HONORS AND AWARDS: List any scholarships, fellowships, honorary degrees,
and honorary society memberships that you believe would be of interest to the
Committee.
None.
9. BAR ASSOCIATIONS: List ail bar associations, legal or judicial-related
committees or conferences of which you are or have been a member, and give
the titles and dates of any offices which you have held in such groups.
A. Bar Associations
California State Bar Association
December, 1972 to present
Los Angeles County Bar Association
1978 to present
Over the years, I have served on the following Los Angeles County Bar
committees:
► Economical Litigation Committee, 1983 - 1984
► Municipal Courts Committee, 1986 - 1987
*■ Special Committee on California Rape Laws, 1978
*■ State Courts Committee, 1988 to present
Mexican-American Bar Association of Los Angeles County
1976 to present
Member, Board of Trustees, 1981
Judicial-Related Committees
• Member, California Judicial Council. Appointed by Chief Justice
Malcolm Lucas for a two-year term beginning January 1, 1991.
-3-
1078
Reappointed by the Chief Justice to a second two-year term
beginning February 1, 1993. The State Judicial Council is the
policy-making body for the California judiciary. It is chaired by the
Chief Justice.
As a member of the Council, I have served on its Municipal Court,
Court Management, Strategic Planning and Executive Committees.
Presently, I am a member of its Rules and Forms Committee.
Presiding Judge, Los Angeles Municipal Court. As Presiding
Judge, I chaired the Court's Executive Committee in 1988.
Member, Los Angeles Municipal Court's Executive Committee,
1984, 1986 - 1989.
Elected Chair, Los Angeles County Municipal Courts Judges'
Association (MCJA), 1990 - 1991.
The MCJA is a statutorily-established association of Los Angeles
County Municipal Court judges. It is through this association that
the 188 municipal court judges in Los Angeles County's 24
separate judicial districts work together on issues of common
concern.
Chair, Judicial Council Advisory Committee on the eight-person
Municipal Court Civil Jury Project, 1987 and 1988. Appointed by
Chief Justice Malcolm Lucas.
Member, Judicial Council Advisory Committee on State Trial Court
Funding, 1990. Appointed by Chief Justice Malcolm Lucas.
Member, Judicial Council Advisory Committee on Trial Court
Improvement Fund, 1988. Appointed by Chief Justice Malcolm
Lucas.
Chair, Los Angeles County Municipal Court's Marshal's
Committee, 1986 - 1988.
Member, California Center for Judicial Education and Research,
New Judge Education Planning Committee, 1988 - 1991.
Member, California Center for Judicial Education and Research,
Civil Proceedings Bench Book Planning Committee, 1990 to date.
1079
10. OTHER MEMBERSHIPS: List all organizations to which you belong that are
active in lobbying before public bodies. Please list all other organizations to
which you belong.
The State Judicial Council, the Los Angeles County Bar Association, the Los
Angeles County Municipal Court Judges' Association and the Mexican-
American Bar Association all engage in lobbying activities before the California
Legislature and other public bodies.
I belong to the following additional organizations:
Hollywood-Los Feliz Jewish Community Center
1110 Bates Avenue
Los Angeles, CA 90027
Member, Board of Directors, 1992 to present
Los Angeles County Bar Association
Alternative Dispute Resolution Services, Inc.
617 S. Olive Street
Los Angeles, CA 90014
Member, Board of Directors, 1993 to present
Public Counsel
3535 W. 6th Street
Los Angeles, CA 90020
Member, Board of Directors, 1984 - 1987
11. COURT ADMISSION: List all courts in which you have been admitted to
practice, with dates of admission and lapses if any such memberships lapsed.
Please explain the reason for any lapse of membership. Give the same
information for administrative bodies which require special admission to
practice.
California State Bar
California Supreme Court
December 1972
United States Supreme Court
May 1977
United States Court of Appeals for the Ninth Circuit
December 1975
-5
1080
United States District Court
Eastern District of California
1972
Central District of California
1973
1 2. PUBLISHED WRITINGS: List the titles, publishers, and dates of books, articles,
reports, or other published material you have written or edited. Please supply
one copy of all published material not readily available to the Committee. Also,
please supply a copy of all speeches by you on issues involving constitutional
law or legal policy. If there were press reports about the speech, and they are
readily available to you, please supply them.
I have not published any articles or books. I have not made any speeches
involving constitutional law or legal policy.
13. HEALTH: What is the present state of your health? List the date of your last
physical examination.
Excellent
Last physical examination: September, 1993
14. JUDICIAL OFFICE: State (chronologically) any judicial offices you have held,
whether such position was elected or appointed, and a description of the
jurisdiction of each such court.
Judge
Los Angeles Municipal Court
Appointed April, 1981 by Governor Edmund G. Brown, Jr.
Elected June, 1982
Elected June, 1988
(Next election June, 1994)
The Municipal Court is a court of limited jurisdiction. It has jurisdiction over all
misdemeanor crimes and civil cases where the amount in controversy does not
exceed $25,000. The Municipal Court also handles all the preliminary hearings
for Superior Court felony cases.
15. CITATIONS: If you are or have been a judge, provide: (1) citations for the ten
most significant opinions you have written; (2) a short summary of and
citations for all appellate opinions where your decisions were reversed or where
your judgment was affirmed with significant criticism of your substantive or
procedural rulings; and (3) citations for significant opinions on federal or state
constitutional issues, together with the citation to appellate court rulings on
such opinions. If any of the opinions were not officially reported, please
provide copies of the opinions.
1081
(1) OPINIONS
[1] Pacifica Corporation v. Citv of Camarillo (1983) 149
Cal.App.3d 168
[2] Carter v. Municipal Court (1983) 149 Cal.App.3d 184
13] J. Paul Getty Museum v. County of Los Anoeies (1983) 148
Cal.App.3d 600
[4] Civil Service Commission v. County of Los Angeles (1983) 2d Civ.
No. 67619 (unpublished)
[5) Samuel G. Perry v. City of Santa Monica (1983) 2d Civ. No.
67882 (unpublished)
[6] Berqer v. Benton (1983) 2d Civ. No. 67423 (unpublished)
[7] People V. Hayden Steel Fisher, ill (September 1986) Crim.
No. 31254661 (unpublished)
[8] People V. Equitable Life (1989) Crim. Case No. 89R. 22311
(unpublished)
[9] Woody Chevrolet. Inc. v. Grange County Salvage Sales (1983)
Civ. No. 89K42540 (unpublished)
[10] Castillo v. Friedman. Civ. Case No. 63948; affirmed and reversed
197 Cal.App.3d Supp. 6 (1986)
Copies of the unpublished opinions are attached.
(2) REVERSALS
Judgments and orders of Los Angeles Municipal Court judges are
reviewed by the Los Angeles County Superior Court Appellate
Department. Since the Appellate Department does not publish many
opinions, I have not kept a record of every judgment or order I have
rendered where one of the parties sought appellate review. The
following is a list of cases where my decision was reversed.
1082
[1] L.A.M. Construction. Inc. v. KRIZ (1993) 14 Cal.App. 4th
Supp. 1
In this action, I granted a motion for summary judgment ruling
that an action to enforce a $23,999 mechanic's lien which had
been filed originally in the Superior Court and later transferred
to the Municipal Court had not been filed timely in the proper
court as required by California Civil Code § 3144. The
Appellate Department reversed, holding that the action was
filed timely under Civil Code § 3144 and Code of Civil
Procedure § 396.
[2] Vanitzian v. Shuoar. L.A.M. C. #89 K47115; L.A.S.C. #BV18980
(19931
This action involved a claim by the plaintiff for unpaid overtime
pay. I found for the plaintiff and entered judgment. On
appeal, the Appellate Department affirmed the substantive
findings and rulings I made, but reversed with instructions to
recalculate the amount of damages due plaintiff.
[3] Senator v. Southern Pacific Equipment Leasing, L.A.M.C. #91
K13877, L.A.S.C. #BV19221 (1993)
In this case, I sustained a demurrer to plaintiff's allegations of
fraud and conspiracy against several of the defendants without
leave to amend. The plaintiff appealed, and the Appellate
Department reversed, holding that plaintiff's fraud and
conspiracy allegations were sufficient to state a claim for relief.
[4] Galvez v. Los Angeles Unified School District L.A.M.C.
#F3065, L.A.S.C. #A16305 (1985)
In this personal injury action, I granted a motion for summary
judgment finding that plaintiff's action was barred by the
applicable statute of limitations. The Appellate Department
reversed, finding there was a triable issue of material fact
regarding the timeliness of plaintiff's action.
[5] Rogers V. Kelsev. L.A.M.C. #F32052, L.A.S.C. #A16031 (1984)
In this action to recover unpaid attorney's fees, I granted
plaintiff's motion for summary judgment. In granting the
plaintiff's motion, I did not consider the defendant's opposition
papers which had not been filed timely as required by local
court rules. The Appellate Department reversed, finding that
I erred in not considering the defendant's opposition papers.
-8-
1083
[6] Vivas V. Southern California Rapid Transit District. L.A.M.C.
#F2562, L.A.S.C. #A16264 (1985)
In this personal injury action, I granted the defendant's motion
for summary judgment ruling that as a matter of law, the
defendant bus company was not negligent. The Appellate
Department reversed finding there were material triable issues
of fact regarding defendant's negligence.
[7] Veaa v. Olivarez. L.A.M.C. #F31314; L.A.S.C. #A15813 11983)
In this action, I denied defendant's motion to vacate a default
judgment. On appeal, the Appellate Department reversed,
finding that the circumstances which led to defendant's default
constituted excusable neglect within the meaning of California
Code of Civil Procedure § 473.
[8] Castillo V. Friedman (1986) 197 Cal.App.3d Supp. 6
This case involved a claim by a former tenant that she was
wrongfully evicted by her former landlord. She alleged her
eviction was obtained through a fraudulent misrepresentation
and that her eviction violated the Los Angeles City Rent
Stabilization Ordinance. I found for the plaintiff, and the
defendant appealed. The Appellate Department affirmed on
the liability issue and reversed on the measure of damages.
Copies of the unpublished opinions are attached.
(3) OPINIONS ON FEDERAL OR STATE CONSTITUTIONAL ISSUES
None
16. PUBLIC OFFICE: State (chronologically) any public offices you have held,
other than judicial offices, including the terms of service and whether such
positions were elected or appointed. State (chronologically) any unsuccessful
candidacies for elective public office.
None.
17. LEGAL CAREER:
a. Describe chronologically your law practice and experience after
graduation from law school including:
1 . whether you served as clerk to a judge, and if so, the name of the
judge, the court, and the dates of the period you were a clerk;
1084
Following graduation from law school, I did not serve as a taw
clerk to any judge.
whether you practiced alone, and if so, the addresses and dates;
I never practiced law as a solo practitioner.
the dates, names and addresses of law firms or offices,
companies or government agencies with which you have been
connected, and the nature of your connection with each;
• August 1972 - January 1974
California Rural Legal Assistance
Delano/McFarland Regional Office
629 Main Street
Delano, CA. 93215
Staff Attorney
• February 1974 - October 1976
Western Center on Law and Poverty
3701 Wilshire Blvd., Suite 208
Los Angeles, CA 90010
1213)487-7211
Staff Attorney
• October 1976 - May 1981
Legal Aid Foundation of Los Angeles
1550 W. Eighth Street
Los Angeles, CA. 90017
(213)487-3320
Senior Counsel, October 1976 - January 1978
Director of Litigation, January 1978 - December 1980
Acting Executive Director and
Director of Litigation, December 1980 - May 1981
• May 1981 - to date
Judge, Los Angeles Municipal Court
110 N. Grand Avenue
Los Angeles, CA. 90012
(213) 974 6227
-10-
1085
b. 1. What has been the general character of your law practice, dividing
it into periods with dates if its character has changed over the
years?
Following my graduation from law school in 1972, I was hired by
California Rural Legal Assistance (CRLA), a federally funded rural
legal services program. I worked as a staff attorney in CRLA's
McFarland/Delano office which was located in Kern County in
California's San Joaquin Valley.
While at CRLA, I represented low-income individuals (many of
whom were non-English speaking farm workers) in a variety of
civil matters before state and federal courts, and administrative
bodies. I also worked with various community groups in our local
service area.
In January 1974, I left CRLA and relocated in Los Angeles.
California. At that time, I began working for the Western Center
on Law and Poverty, a federally funded legal services support
center for southern California. I was employed as a staff
attorney. While at the Western Center, I continued to work on
poverty law issues in cooperation with attorneys from
neighborhood legal services offices. I provided advice and counsel
on substantive legal questions; technical assistance on litigation
matters; co-counsel assistance on civil cases in state and federal
courts at both the trial and appellate court levels; and I litigated
cases on my own that were referred by attorneys from local legal
services programs.
In 1977, I left the Western Center to work for the Legal Aid
Foundation of Los Angeles ac a Senior Counsel. As a Senior
Counsel, my responsibilities were similar to those I performed at
the Western Center. The principal difference was that I worked
directly for a local legal services program that employed 40
attorneys in branch offices throughout the City of Los Angeles.
In 1978, I became the Director of Litigation for the Legal Aid
Foundation of Los Angeles. In this capacity, I assumed
responsibility for the Foundation's overall litigation efforts. I was
also responsible for supervising the program's senior and
managing attorneys. Throughout these years, I continued to
litigate cases involving complex legal and procedural issues, both
on my own and as co-counsel with other Foundation attorneys.
11-
1086
In January, 1981, I was appointed Acting Executive Director by
the Foundation's Board of Directors. As Executive Director, I was
responsible for the overall administration of the program. I
remained in this position until my appointment to the Municipal
Court in May, 1981.
As a Municipal Court Judge, I have served in full-time criminal,
civil, and administrative assignments. In the 13 years that I have
been a judge, I have handled hundreds of criminal and civil trials,
both jury and nonjury. In 1983, I served on assignment with the
California Court of Appeal, Second District, Division 7. Since
June, 1993, I have served on cross-assignment with the Los
Angeles Superior Court hearing civil jury trials.
2. Describe your typical former clients, and mention the areas, if any,
in which you have specialized.
The typical clients I represented while working for federally funded
legal services programs were low-income individuals with incomes
below the federally established poverty guidelines. Many of the
clients I represented were African American, Hispanic, and non-
English speaking individuals.
I did not specialize in any one area of the law. My primary
interest was complex civil litigation in state and federal courts at
the trial and appellate court levels.
1. Did you appear in court frequently, occasionally, or not at all? If
the frequency of your appearances in court varied, describe each
such variance, giving dates.
I appeared in court regularly until I became Executive Director of
the Legal Aid Foundation of Los Angeles. While Executive
Director, I made occasional court appearances.
2. What percentage of these appearances was in:
(a) federal courts: 30%
(b) state courts of record: 70%
(c) other courts
3. What percentage of your litigation was
(a) civil 100%
lb) criminal 0%
-12-
1087
4. State the number of cases in courts of record you tried to verdict
or judgment (rather than settled), indicating whether you were
sole counsel, chief counsel, or associate counsel.
Approximately 10 cases as associate counsel and 15 cases as
sole counsel.
5. What percentage of these trials was:
(a) jury: 0%
lb) non-jury. 100%
18. LITIGATION: Describe the ten most significant litigated matters which you
personally handled. Give the citations, if the cases were reported, and the
docket number and date if unreported. Give a capsule summary of the
substance of each case. Identify the party or parties whom you represented;
describe in detail the nature of your participation in the litigation and the final
disposition of the case. Also state as to each case:
(a) the date of representation
(b) the name of the court and the name
of the judge or judges before whom
the case was litigated: and
(c) the individual names, addresses, and
telephone numbers of co-counsel and
of principal counsel for each of the
other parties.
(1) Chavez-Salido v. Cabell. Civ. No. 76-9541 -IH (3-Judge Court).
427 F.Supp. 158 (1977): vacated and remanded 436 U.S. 901,
98 Sup. Ct. 2228 (1978); 490 F.Supp. 984 (1980) (Opinion on
remand); reserved 454 U.S. 432 (1982)
In this action, the plaintiffs, all of who were lawful resident aliens,
were denied employment as deputy Los Angeles County probation
officers because they were not United States citizens. At the
time citizenship was a statutory requirement for this position.
This action involved an equal protection challenge to the statutory
citizenship requirement -- California Government Code § 1041(a).
Although the three-Judge Federal District Court declared the
statute unconstitutional as a violation of the Fourteenth
Amendment, the United States Supreme Court reversed.
Subsequently, the relevant state statutes were amended to allow
resident aliens who have applied for United States citizenship to
be employed as deputy probation officers.
-13-
1088
In this action, I represented the three plaintiffs. I was the sole
counsel throughout all proceedings except the final argument
before the United States Supreme Court. (I did not argue this
case before the U.S. Supreme Court because at the time of oral
argument, I was a municipal court judge.)
Judge:
Senior U.S. District Judge Irving Hill
Central District of California
Defendant's Attorney:
Hon. Phillip H. Hickok
Los Angeles Superior Court
Dept. T
12720 Norwalk Blvd.
Norwalk, CA 90650-3188
(310) 603-7211
(2) Rank v. Nimmo. Civ. No. 76-3265-LEW, 460 F. Supp. 920 (CD.
Cal.1978), reversed 677 F.2d 692 (1982)
The plaintiff in this case was a Korean War veteran who had
financed the purchase of his home with a VA guaranteed home
loan. When he was laid off from work in the early seventies, he
was unable to make his mortgage payments. The lender
foreclosed and initiated eviction proceedings. He then sought help
from a local legal services program.
In essence, this case involved the obligation of the Veterans
Administration to service the plaintiff's VA-guaranteed home loan
so that he could avoid foreclosure and retain his home. The
District Court held that the VA failed to meet its statutory
obligation and set aside the foreclosure sale of the veteran's
home. The Ninth Circuit reversed finding the plaintiff could not
state a private cause of action under the applicable statutes and
regulations. (I did not argue this case before the Ninth Circuit
because at the time of oral argument, I was a municipal court
judge.)
I represented the plaintiff in this action. I filed the action and
acted as lead counsel until I left the Western Center on Law and
Poverty. Thereafter, I co-counseled the case with Richard
Rothschild.
Judge:
Senior U.S. District Judge Laughlin Waters
Central District of California
-14-
1089
Defendant's Attorney:
Barry Trilling
Assistant U.S. Attorney
U.S. Department of Justice
Washington, D.C.
Co-Counsel:
Richard Rothschild
3701 Wilshire Blvd., Suite 208
Los Angeles, CA 90010
(213) 487-7211, Ext. 24
(3) Muraia v. Municipal Court (1975) 15 Cal.3d 286
This case, which arose out of the 1973-74 farm workers' strike
In the San Joaquin Valley, firmly established the right of a
defendant to raise the defense of discriminatory enforcement of
the law.
In this consolidated criminal action, we represented a number of
individuals who were charged with minor misdemeanor offenses
while participating in a farm workers' strike in Kern County,
California. We argued that the defendants were arrested solely
because of their involvement in the strike and sought to raise the
affirmative defense of discriminatory enforcement of the law. The
trial court found that the defendants made a prima facie showing
of discriminatory enforcement of the law, but ruled that the
defendants could not raise this defense. The Court of Appeal and
the California Supreme Court reversed. Following the California
Supreme Court's decision, the Kern County District Attorney's
office dismissed the charges against all the defendants. I handled
this case through the Court of Appeal proceedings with co-
counsels Ken Rice and Miguel Garcia.
We represented the defendants in this action. I co-counseled this
case with Ken Rice and Miguel Garcia.
Judge:
Hon. Judge Gerald Davies, Ret'd.
Kern County Superior Court
Co-Counsel:
Ken Rice
215 North Lincoln Street
Box 520
Santa Maria, CA 93456
(805) 925-2611
-15-
1090
Miguel Garcia
5842 E. Beverly Blvd.
Los Angeles, CA 90022-2824
(213) 723-1890
People's Anorney:
Kern County District Attorney's Office
1215 Truxtun Avenue
Bakersfield, CA 93301
(4) Civil Service Comm. v. Superior Court (Price) (1977) 63
Cal.App.3d 627
The plaintiff in this action had been employed by the County of
Los Angeles. The County terminated him for misconduct. He
appealed his termination to the Los Angeles County Civil Service
Commission. Following an evidentiary hearing, his termination
was affirmed. He then sought judicial review. He could not,
however, afford the cost of the administrative hearing transcript.
Because the termination of plaintiff's employment involved a
vested right under California law and independent judicial review,
the trial court upon plaintiff's motion ordered the Civil Service
Commission to prepare a transcript of the hearing at its own
expense. The Commission then sought appellate review. The
Court of Appeal reversed.
Although the Court of Appeal denied relief, the Legislature
ultimately amended Code of Civil Procedure section 1094.5 to
require an administrative agency to furnish the trial court with a
copy of the administrative record at its expense.
I represented the plaintiff in the superior and appellate courts. I
co-counseled this case with Georgia Franklin.
Judge:
Hon. Norman Dowds, Ret'd
Los Angeles Superior Court
Defendant's Counsel:
David L. Muir
Principal Deputy County Counsel
500 W. Temple Street, Suite 648
Los Angeles, CA 90012
(213) 974-1876
•16-
1091
Co-Counsel:
Georgia Franklin
944 15th Street, #2
Santa Monica, CA 90403
(310) 394-3936
15) Ponce v. City of Tulare. Tulare County Superior Court, Civ. No.
74-581 (filed 1/29/83)
This was a 42 U.S.C. section 1981 employment discrimination
case. It was filed on behalf of African-Americans and Mexican-
Americans against the City of Tulare and challenged the hiring and
promotional practices of the City. In April 1978, in the first phase
of the trial, the Superior Court held that the City of Tulare
intentionally discriminated against African-American and Mexican
American applicants and employees in its hiring and promotional
practices. In the second phase, the trial court awarded damages
to the named plaintiffs and class members. The trial court also
awarded attorney's fees under 42 U.S.C. section 1988.
Trial Judge:
Hon. Leonard Ginsberg, Ret'd.
Tulare County Superior Court
Defendant's Attorneys:
John Berryhill (deceased)
Tulare, California
Louie La Rose (deceased)
Visalia, California
Co-Counsel:
David Bryson (phase I)
National Housing Law Project
2201 Broadway, #815
Oakland, CA 94612
(510) 251-9400
Tomas Olmos (phase I)
Legal Aid Foundation of Los Angeles
1550 W. Eighth Street
Los Angeles, CA 90017
(213) 252-3922
-17-
1092
Dan Stormer (phase II)
Attorney at Law
1280 N. Fair Oaks Avenue
Pasadena, CA 91103
(818) 585-9600
(6) Tonqol v. Userv. Civ. No. 76-100-WTS (N.D. Cal., judgment
entered 2/1/77) [601 F.2d 1091 (9th Cir. 1979)]
This was a nationwide class action under the Emergency
Unemployment Compensation Act of 1975 which challenged 20
C.F.R. § 618.15 (a) and (f). This regulation prohibited states from
applying their unemployment insurance waiver of overpayment
provisions to overpayments of Federal Supplement Benefits (FSB).
The District Court entered judgment on behalf of the plaintiffs
declaring the regulations inconsistent with the federal statute.
The District Court denied plaintiffs' request for attorney's fees
under 42 U.S.C. § 1988 on the grounds that plaintiffs' action did
not state a claim for relief under 42 U.S.C. § 1983. On appeal,
the Ninth Circuit affirmed the judgment on the merits and reversed
the District Court's denial of attorney's fees. On the attorney's
fees issue, the Ninth Circuit held that a deprivation of rights
secured by federal statutory law could be enforced under 42
use. § 1983.
We represented the plaintiffs. I co-counseled this action with
Richard M. Pearl. I was responsible for the class certification
proceedings of this case.
Judge:
U.S. District Court Judge William Orrick
Northern District of California
Defendant's Attorney:
William T. McGivern, Jr.
Assistant U.S. Attorney
San Francisco, CA
(415) 556-5718
Co-Counsel:
Richard M. Pearl
Attorney at Law
685 Market Street, #690
San Francisco, CA 94105
(415) 243 9912
-18-
1093
(7) Ponce v. Housing Authority of Tulare County. 389 F.Supp. 625
(E.D. Cal.1973)
In this case, we represented tenants who opposed the imposition
of a rent increase in a Farmers Home Administration low income
housing project.
This case established the due process right of low-income tenants
residing in Farmers Home Administration-financed housing projects
to receive prior notice and an opportunity to be heard before the
imposition of project-wide rent increases.
We represented individual tenants as well as a tenants' union in
their efforts to secure meaningful participation in the decision to
increase rents.
I co-counseled this case with Richard M. Pearl.
Trial Judge:
Senior U.S. District Judge Thomas J. McBride
Eastern District of California
Co-Counsel:
Richard M. Pearl
Attorney at Law
685 Market Street, #690
San Francisco, CA 94105
(415)243-9912
Defendant's Attorney:
Lloyd L. Hicks
119 S. Church Street
Box 350
Tulare, CA 93279
(209) 733-1065
(8) Johnson v. Marshall. Civ. No. 76-401 5-F (CD. Cal., partial
consent judgment entered 7/20/78, final judgment entered
3/21/79)
In this action, the plaintiff was a participant in Los Angeles
County's Comprehensive Employment and Training Act program.
When she was summarily terminated from the program, she was
denied any opportunity to contest her termination.
19-
1094
This case sought to compel Los Angeles County to implement a
grievance procedure for persons employed by the County as
required by the Comprehensive Employment and Training Act of
1976 (CETA). The class action aspects of this case were
resolved by a partial consent decree whereby the County agreed
to implement the required grievance procedures, and to provide
discharged CETA participants with the opportunity to request a
hearing to contest their termination. The additional claims of the
named plaintiff as well as her request for an award of attorney's
fees under 42 U.S.C. § 1988 were rejected by the District Court.
Plaintiff appealed the denial of her claim and the attorney's fees
issues to the Ninth Circuit. The Ninth Circuit affirmed the denial
of the plaintiff's individual claims but remanded the case to the
District Court for consideration of plaintiff's motion for an award
of attorneys' fees under 42 U.S.C. § 1988, for the work
performed in connection with the consent decree. Subsequently,
the District Court awarded plaintiff's counsel attorney's fees under
42 use. § 1988.
We represented the plaintiff. I co-counseled this action with
Sandra Pettit and Michael Wine.
Judge:
Senior U.S. District Court Judge Warren J. Ferguson
Central District of California
Defendant's Attorneys:
Kathy Tooks
(former) Assistant U.S. Attorney
Los Angeles, CA
Joe Ben Hudgens
Deputy County Counsel
500 W. Temple St., #648
Los Angeles, CA 90012
(213) 526-6158
Co-Counsel:
Sandra Pettit
Attorney at Law
2800 28th Street, #315
Santa Monica, CA 90405-6205
(310)450-9582
-20-
1095
Michael Wine
Attorney at Law
P.O. Box 91564
City of Industry, CA 91715-1564
(818) 333-7029
(9) Mavorauin-Cedaftov. Fink. Civ. No. 78-1429-LEW (filed 4/13/78)
This action challenged the constitutionality of former 19 U.S.C. §
1594 which allowed U.S. Customs officials to seize vehicles as
security for payment of a penalty assessed under 19. U.S.C. §
1549 and 1460 without notice and an opportunity to be heard.
Shortly after this case was filed, the U.S. Customs Service
changed its procedures to provide for notice and a prompt
opportunity to contest the seizure of a vehicle. The District Court
denied class certification. Thereafter, the case settled, whereby
plaintiff Cedano received his car and $500, and plaintiff Hirales
received $900. Although this case settled for nominal amounts,
it was significant because it was one of the precipitating factors
that led the U.S. Customs Service to change its regulations to
ensure due process safeguards for owners of seized vehicles.
I represented the plaintiffs.
Trial Judge:
Laughlin Waters
Senior U.S. District Court Judge
Central District of California
Defendant's Attorney:
Hon. Stephen D. Petersen
Los Angeles Superior Court
Department X
6230 Sylmar Avenue
Van Nuys, CA 91401
(818) 374-3112
(10) Fair v. Hills. Civ. No. 75-2455-DWW (filed 7/18/75, dismissed
12/76)
This action involved a challenge to the bulk sale of 160 FHA
repossessed homes in San Bernardino, California, by the
United States Department of Housing and Urban
Development. The District Court enjoined the private
developers from rehabilitating, selling, or in any way
disposing of the 160 homes without taking certain steps to
ensure the viability of the proposed development. The
-21-
1096
plaintiffs in this case were nearby homeowners who were
affected by the proposed development. This case was
significant because the 160 repossessed homes were located
in a low-income neighborhood in San Bernardino. The
plaintiffs sought to compel HUD to impose certain conditions
on the bulk sale that would ensure the success of the private
redevelopment project. After the District Court's ruling on
the preliminary injunction, the case settled.
We represented the plaintiffs in this case. I co-counseled this
action with Mary Burdick.
Trial Judge:
David Williams
Senior U.S. District Court Judge
Central District of California
Defendant's Attorney:
Leiand Stark
9454 Wilshire Blvd., #900
Beverly Hills, CA 90212
(310) 278-6750
Co-Counsel:
Mary S. Burdick
3701 Wilshire Blvd., Ste 208
Los Angeles, CA 90010
{213)487-7211. Ext. 27
In addition to the above-referenced attorneys, the following is a
list of attorneys and judges who are familiar with my judicial
work:
1. Lara Bloomquist
Deputy City Attorney
City Hall East
200 N. Main Street, Rm. 1600
Los Angeles, CA 90012
(213)485-6370
2. Robert Brodney
Deputy District Attorney
Hall of Records
320 West Temple, Ste. 348-10
Los Angeles, CA 90012
(213) 974-3611
-22-
1097
3. Mario Diaz
6255 Sunset Blvd., Ste. 612
Hollywood, CA 90028
(213) 469-6293
4. Carole Miller
Deputy City Attorney
14724 Ventura Blvd.
Sherman Oaks, CA 91403
(818) 908-4062
5. Thomas Dempsey
1880 Century Park E
Ste. 1100
Los Angeles, CA 90067
(310) 552-7868
6. John Vandevelde
655 South Hope Street
13th Floor
Los Angeles, CA 90017
(213) 622-4750
7. Michael Stern
445 S. Figueroa, Ste. 2222
Los Angeles, CA 90012
(213) 624-2969
8. Valerie Vanaman
14001 Ventura Blvd.
Sherman Oaks, CA 91423
(818) 990-7722
9. Hon. Aviva K. Bobb
Past Presiding Judge
Los Angeles Municipal Court
Division 13
110 North Grand Avenue
Los Angeles, CA 90012
(213) 974-6223
10. Hon. Edward Ferns
Los Angeles Superior Court
Department 133
210 West Temple Street
Los Angeles, CA 90012
(213) 974-5783
-23-
1098
1 1 . Beth Jay
Legal Director
Chief Justice's Staff
303 2nd Street
San Francisco, CA 94107-1317
(415) 396-9414
12. Justice Earl Johnson
California Court of Appeal
Division 7
300 S. Spring Street
Los Angeles, CA 90013-1213
(213) 897-2433
1 9. LEGAL ACTIVITIES: Describe the most significant legal activities you have
pursued, including significant litigation which did not progress to trial or legal
matters that did not involve litigation. Describe the nature of your participation
in this question; please omit any information protected by the attorney-client
privilege (unless the privilege has been waived).
During the years I worked in legal services, my "legal activities" primarily
involved civil litigation. Many of the cases I worked on settled prior to trial, and
several of the more significant ones are described above. Litigating cases,
however, was not the only legal activity I pursued. As Director of Litigation,
it was my responsibility to provide overall direction for the Legal Aid
Foundation's legal work. This involved setting program priorities in consultation
with the client community and program staff, and then insuring that the
Foundation's resources were devoted to implementing the established priorities.
As a result of this priority-setting, the Foundation pursued a number of
successful housing law-related projects. The Foundation's attorneys and
legislative lobbyist obtained legislative protection for homeowners in South
Central Los Angeles who were threatened with the loss of their homes by tax
lien sales and equity "rip-off" artists; Foundation attorneys litigated cases
against governmental agencies for failing to inspect and cite apartment owners
who maintained their property in substandard conditions; and the Foundation
took steps through a tenants' counseling center to ensure that low-income
tenants threatened with eviction understood the judicial process so that, if they
desired, they could represent themselves in court. Although I did not assume
direct responsibility for these projects, it was my task to encourage, and
provide direction and support to the staff attorneys who successfully pursued
many of these projects.
■24-
1099
In the years that I have been a judge, I have worked on a number of issues to
improve the administration of justice. As Presiding Judge of the Los Angeles
Municipal Court in 1988, I started the Court's attempt to implement a criminal
trial delay reduction program. I also developed a program to improve the
Court's use of Temporary Judges (attorneys appointed to act as a temporary
judge for a limited time) by requiring training, supervision and monitoring of
their work. I also supported a number of projects that sought to achieve
greater judicial cooperation between the Municipal and Superior Courts in Los
Angeles County.
As Chair of the Los Angeles Municipal Court Judges' Association (MCJA), I
testified before the Legislature in support of legislation that required greater
cooperation and joint utilization of resources between the Municipal and
Superior Courts.
As Supervising Judge of the Los Angeles Municipal Court's civil judges, I
instituted a civil trial court delay reduction project. This resulted in a major
change in the way the Court calendars civil cases. We converted our master
calendar system to a direct "federal style" system; established an arbitration
and settlement conference program; and implemented a computerized tracking
system for all general civil cases. As a result of this program, we have
eliminated considerable delay in the time it takes to resolve a case in our Court.
In addition to my direct involvement in judicial administration, I have also been
active in judicial education with the California Center for Judicial Education and
Research (CJER). I have taught civil law and procedure to many judges
throughout the state at numerous judicial education programs sponsored by
CJER. Through my involvement with CJER, I have sought to share my
experience and knowledge with other less experienced judges as well as
improve my legal knowledge and judicial abilities.
Finally, for the past three years, I have had the opportunity to serve on the
State Judicial Council, the policy-making body for the California judiciary. I
have served at a time when significant change is taking place within
California's trial court system. I have been an active participant in the Council
and supported such court reform measures as trial court delay reduction
programs, unification and consolidation of the trial courts, state trial court
funding, and greater planning by the Council to address the future needs of the
California judiciary and the state's increasingly diverse population.
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated receipts from deferred
income arrangements, stock, options, uncompleted contracts and other future
benefits which you expect to derive from previous business relationships,
professional services, firm memberships, former employers, clients, or
-25-
1100
customers. Please describe the arrangements you have made to be
compensated in the future for any financial or business interest.
As a member of the California judiciary, I am a member of the California Judges
Retirement System. To date, I have contributed approximately $78,000 to this
retirement system. When I leave my current judicial position, I will withdraw
all of my contributions.
As a Los Angeles County Municipal Court Judge, I have been allowed to
participate in the County's Tax Deferred Savings Plan (401 K) and Deferred
Compensation programs. I will withdraw all of my contributions to these
programs and, if possible, all funds will be deposited directly into my individual
retirement account.
The current market value of my savings plan is approximately $55,000, and my
deferred compensation is valued at approximately $28,000. Because I make
monthly contributions to these savings plans and the nature of the investment,
diversified stock mutual funds, their values fluctuate daily.
2. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern. Identify the
categories of litigation and financial arrangements that are likely to present
potential conflicts-of-interest during your initial service in the position to which
you have been nominated.
All of my financial investments are in stock mutual funds managed by Fidelity
Investments. Accordingly, I do not anticipate any conflict-of-interest problems.
The only possible conflict of interest would be if I were assigned a case where
IBM is a party to the action. If this happened, I would disclose that my spouse
is an IBM employee, the nature of her employment, and disqualify myself from
the case unless the litigants and their attorneys signed written waivers of any
potential conflict of interest. In the event of any potential conflict of interest,
however, I would follow the guidelines for the Code of Judicial Conduct for the
federal judiciary.
3. Do you have any plans, commitments, or agreements to pursue outside
employment, with or without compensation, during your service with the court?
If so, explain.
No.
4. List sources and amounts of all income received during the calendar year
preceding your nomination and for the current calendar year, including all
salaries, fees, dividends, interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more. (If you prefer to do so, copies of the
financial disclosure report required by the Ethics in Government Act of 1978
may be substituted here.)
-26-
1101
A copy of my initial Financial Disclosure Report is attached.
5. Please complete the attached financial net worth statement in detail (Add
schedules as called for).
See attached form with schedules.
6. Have you ever held a position or played a role in a political campaign? If so,
please identify the particulars of the campaign, including the candidate, dates
of the campaign, your titles and responsibilities.
No.
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar Association's Code
of Professional Responsibility calls for "every lawyer, regardless of professional
prominence or professional workload, to find some time to participate in serving
the disadvantaged." Describe what you have done to fulfill these
responsibilities, listing specific instances and the amount of time devoted to
each.
I fully appreciate the ethical consideration set forth in Canon 2 in the ABA's
Code of Professional Responsibility. As my response to Question No. 17
indicates from the time I graduated from law school until my appointment to
the municipal court, I represented disadvantaged individuals. I sought to
provide quality representation to low income individuals who could not afford
to hire private attorneys.
As a judge, I have sought to demystify the state judicial system by explaining
how the system works to unrepresented litigants, jurors and those who visit
the courthouse. I have also spoken to school children at local schools and to
law students who visit the courthouse.
The American Bar Association's Commentary to its Code of Judicial Conduct
states that it is inappropriate for a judge to hold membership in any organization
that invidiously discriminates on the basis of race, sex, or religion. Do you
currently belong, or have you belonged, to any organization which discriminates
" through either formal membership requirements or the practical
implementation of membership policies? If so, list, with dates of membership.
What have you done to try to change these policies?
No.
■27-
'1102
3. Is there a selection commission in your jurisdiction to recommend candidates
for nomination to the federal courts? If so, did it recommend your nomination?
Please describe your experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your nomination and
interviews in which you participated).
Yes. Senator Barbara Boxer established a Judicial Nominating Committee to
advise her on judicial nominations. This committee recommended my name to
Senator Boxer.
In February, 1993, I read in the Los Anoeles Daily Journal that Senator Boxer
had established a Judicial Nominating Committee for the Central District of
California to advise her on judicial nominations. In response to this article, I
contacted Senator Boxer's office and requested information on the selection
process. I was told that I would have to complete a Personal Data
Questionnaire and provide several letters of reference. Thereafter, Senator
Boxer's office sent me the questionnaire.
I completed the questionnaire (which was similar to this form) and returned it
to Senator Boxer's office. Shortly thereafter, the Chair of the Judicial
Nominating Committee notified me that she had received my Personal Data
Questionnaire and that the Committee would be conducting an evaluation of
my qualifications to serve on the Federal District Court.
Sometime thereafter a member of the Committee notified me that she and
another Committee member had been assigned the initial task of evaluating my
qualifications. She explained that this would involve sending questionnaires to
lawyers and judges who were familiar with my work. I then provided this
subcommittee with a list of names of lawyers who had tried cases before me
and judges who were familiar with my work and reputation.
In May, the subcommittee called me for an interview. At this meeting, I
answered questions regarding my judicial experience and cases I litigated as an
attorney. I was also given an opportunity to explain why I believed I was
qualified to serve on the Federal District Court.
In June, 1993, the Chair of the Judicial Nominating Committee called me for
an interview with the entire Committee. This interview was similar to the first
one but covered all aspects of my professional career. I was also asked to
assess my judicial temperament and how a lifetime appointment might affect
my judicial demeanor. This interview lasted approximately 1/2 hour.
-28
1103
In July, I received a telephone call from Senator Boxer's Chief of Staff
informing me that I had received a unanimous exceptionally well qualified rating
from the Judicial Nominating Committee and that it was Senator Boxer's
intention to recommend my name to President Clinton for nomination to the
Federal District Court in Los Angeles. We then discussed a mutually convenient
date that I could meet with Senator Boxer when she returned from Washington,
D.C. for the summer legislative recess.
On August 9, 1993, 1 met with Senator Boxer in San Francisco. We had a brief
discussion of the selection process and the rating I received from her
Committee. She informed me that she intended to recommend my name to
President Clinton. She then reviewed the confirmation process with me and
explained that it would take four to six months before I would be confirmed.
On August 13, 1993, Senator Boxer publicly announced that she was
recommending my name to President Clinton for nomination to the Federal
District Court.
In September, 1993, the White House sent me a number of forms and
questionnaires to complete. After completing those documents, I returned
them to the White House.
In early November, 1993, I was contacted by a representative from the
Department of Justice. I was invited to meet with Assistant Attorney General
Eleanor D. Acheson along with other representatives from the Department of
Justice. In mid-November, I met with these individuals at the Department of
Justice. During that meeting, we reviewed my professional experience, both
as a lawyer and judge, my extra judicial activities in judicial administration and
education. I was also asked to assess my judicial demeanor and how a lifetime
appointment would affect my judicial temperament.
In early December, 1993, 1 was contacted by an agent from the Federal Bureau
of Investigation to inform me that he would be conducting a background
investigation. I was asked to gather certain information that would be needed
at a personal interview. Several days later, I was interviewed by this agent for
approximately two hours regarding all aspects of my personal background and
professional experience. I provided all the information requested.
In late December, 1993, I was contacted by a representative from the
American Bar Association Standing Committee on the Federal Judiciary. I was
asked to prepare an additional list of professional references in addition to the
names I supplied in my responses to the ABA's Personal Data Questionnaire.
We scheduled a date and time for an interview. Subsequently, I met with the
ABA representative for approximately two hours. We reviewed my professional
career and judicial experience.
-29-
1104
On March 9, 1994, I was contacted by Victoria Radd from the White House
and infornned that President Clinton had formally nominated me to the Federal
District Court in Los Angeles. Later that day, I was contacted by a
representative from the Department of Justice and advised to file my initial
Financial Disclosure Report with the Judicial Ethics Committee. I filed that
report on March 11, 1994.
4. Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any specific case, legal issue or question in a manner that
could reasonably be interpreted as asking how you would rule on such case,
issue, or question? If so, please explain fully.
No.
5. Please discuss your views on the following criticism involving "judicial
activism."
The role of the Federal judiciary within the Federal government, and within
society generally, has become the subject of increasing controversy in recent
years. It has become the target of both popular and academic criticism that
alleges that the judicial branch has usurped many of the prerogatives of other
branches and levels of government.
Some of the characteristics of this "judicial activism" have been said to include:
a. A tendency by the judiciary toward problem-solution rather than
grievance-resolution;
b. A tendency by the judiciary to employ the individual plaintiff as a vehicle
for the imposition of far-reaching orders extending to broad classes of
individuals;
C. A tendency by the judiciary to impose broad, affirmative duties upon
governments and society;
d. A tendency by the judiciary toward loosening jurisdictional requirements
such as standing and ripeness; and
e. A tendency by the judiciary to impose itself upon other institutions in the
manner of an administrator with continuing oversight responsibilities.
Although it has been many years since I litigated cases in the federal courts,
my litigation and judicial experience suggest that charges of "judicial activism"
depend on how one is affected by or whether one agrees or disagrees with a
particular court decision. The federal courts and courts in general do not reach
out to decide cases or issues. Litigants who seek redress of their grievances
-30-
1105
bring disputes before the courts for resolution. Indeed, it has been my
experience as a judge that the routine business of the courts is the resolution
of genuine grievances by individuals or entities. I have every reason to believe
that the same situation confronts Federal District Court judges.
Individuals and entities utilize the courts to settle their particular grievances and
not to solve societal problems. Similarly, trial court judges, whether they are
state or federal judges, resolve the dispute between the litigants. When the
dispute involves novel issues or many people, the trial court's decision may
affect individuals and entities not before the court. The courts, however,
cannot reject a case or decline to decide it simply because it may affect others
who are not directly involved in the litigation.
Broad class-wide relief is not easily available. It is appropriate only when the
trial court determines that the requirements for such relief under Rule 23 of the
Federal Rules of Civil Procedure have been satisfied. Although class relief may
affect many individuals, it is a procedural remedy that is designed to facilitate
more efficient use of limited judicial resources.
In some controversial instances, judges have imposed broad orders against
government and other institutions. This, however, is not the norm. Judges,
for the most part, are reluctant to impose broad relief. Yet, when courts grant
relief and governments or other institutions fail or refuse to comply with a
court's judgment, then the courts have no choice but to enforce their orders.
This does not mean that a judge should or needs to take on the role of a
program administrator; what it does mean is the court should employ
reasonable means to ensure that its orders and judgments will be implemented
and respected.
Finally, in the area of standing and private enforcement of statutory rights, the
trend in the past decade has been to tighten standing requirements, and to limit
the circumstances under which a plaintiff may maintain a private cause of
action, where there is no express statutory authority. In this regard, some
criticism suggests that standing requirements are too restrictive and deny
individuals access to the courts.
Whether one agrees or disagrees with the above criticism of "judicial activism"
is not the issue. What is important is how individual judges view their role. A
trial court judge's primary task is to determine what the law is; determine the
facts in an unbiased manner; and apply the law fairly to the facts to reach a
just result. Having been a trial court judge for many years, I understand these
responsibilities and will undertake them with appreciation of the significance of
every decision I make.
-31
1106
FINANCIAL DISCLOSURE REPORT
Rapoxt Raqulrad by tb« Ithlca
Hmtorm Act of 1909, Pub. L. No.
101-194, Movaabv 30, 1989
(S U.S.C.A. App. 6. fflOl-112)
1. Parsoo topcrxlog (L«Bt oajm, flrar, alddl* initial)
PAEZ, RICHARD A.
2. Court or Organlzatloo
DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
3. Data of toport
3-10-94
4. Titla (Arrlcla III ^udgaa Indicata active or
aanlor atatua; Haglatrata ^udgaa lodlcata
full- or part-tlBa)
U.S. DISTRICT CCXJRT JUDGE
i. Raport TVP* (chack appropriate typa)
^ nomination. Data 3/9/94
X Initial Annual final
6. Raportlng Period
Jan. 1, 1993 -
March 9, 1994
7. Ctiub^rs or Of flea Addr«a
Los Angeles Municipal Court, Div. 15
110 N. Grand Avenue
Los Angeles, CA 90012
e. on tha baala of ttta inforvatlon contained in tbla toport, It
la. Id By opinion, in co^lianc* wltta applicabla lava and
r*gulationa
RBvlawlDg Offlear Slgnatora
IMPORTANT NOTES: 77)« insDucoons accompanying this form must be foOowtd. Complete all parts,
cfaeddng the NONE box for each lectioo where you have no reporuble infonnatioii. Siffi on last page
I. POSITIONS. (Reponing individual onJy, see pp. 7-8 of Insirunions.)
POSITION NAME OF ORGANIZATION/ENTITY
NONE (Ho r.portabla poaltlona)
Member, Board of Directors
Member, Board of Directors
Council Member
Los Angeles County BAR Dispute Resolution Serv. Inc.
Hollywood Los Feliz Jewish Conmunity Center
California Judicial Council
I. AGREEMENTS. (Reponing individual only, see p. 8-9 of Instructions.)
DATE PARTIES AND TERMS
□
NONE (Ho r.port*bl. agr....Qt.)
I. NON-INVESTMENT INCOME. (Reponing individual and spouse; see pp. 9-12 of Instnictions.)
DATE
(Honoraria only)
SOURCE AND TYPE
n
NONE (Vo tforXMbl* non-lnv..tB.Dt iocoa.)
1993
1994 (2 mos)
Los
Angeles
County ,
Judicial
Compensation
Los
Angeles
County ,
Judicial
Compensation
State of Ca]
ifomia
, Judicia
I Compensation
IBM
Corporat
.ion (S
) Salary
GROSS INCOME
(yours, not spouse's)
S 104,700/yr.
S 17,600
$ 1,572
s
$
1107
FINANCIAL DISCLOSURE REPORT (cont'd)
• of p*raon teportlag
RICHARD A. PAEZ
Data of laiiuiT
3/10/94
IV.
REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.
n
— ^, ._..,»., ....... ««.. .■^i^ ».».*.ik«^>,^i kwkii^^i I, iv^^^N^ii iv^, ■t.fv^t.i, ^./i liw^i lean M I Id II.
(Includes those to spouse ud dependent chUdren: use the parentbeticals 7S)' and '(DC)' to Indicate rnortabic
relmbunements and gins received by spouse and dependent children, respectively. Sec pp.l3-l5 of Instmctiaaa.)
SOURCE DESCRIPTION
NONE (No aacb raporlabla ralaburaaaanta or gift*)
EXEMPT
OTHER GIFTS, (includes those to spouse and dependent children; use the parenthetlcals *(S)* and '(DC)* to
Indlcau other gifts received by spouse and dependent children, respectively. Sec pp.l5-16 of InstmOlQoa.)
SOURCE DESCRIPTION
n
VALUE
NONE
(Ho aucb raponabla glfta)
EXEMPT
VI. LIABILITIES, (includes those of spouse and dependent chUdren; Indicate where applicable, person responsible
for liability by using the parenthetical '(S)' for separate liability of spouse, "(J)' for joint liability of reporting
individual and spouse, and "(DC)' for liability of a dependent cnild. Me pp.l6-18 of^lnstructions.)
n
CREDITGR
DESCRIPTION
VALUE CODE*
(Ro raportabia llabllltlaa]
NONE
IBM Corp. Tax Def. Sav. Plan
Loan
(J)
United States Savings Bank
Mortgage Loan
(J)
• VMJB OOOtS:
$15,000 or laii
S2SD,001 to SSOO.MO
119,001 to SJO.OOO
S500,001 to $1,000,000
I, • $90,001 to 1100,000
P - Nora tJiaji $1,000,000
H - $100,001 to (390,000
1108
FINANCIAL DISCLOSURE REPORT (cont'd)
9amm of Pvraoo RsporllDg
RICHARD A. PAEZ
Dac« of R«port
3/10/94
VII. INVESTMENTS and TRUSTS - income, value, transactions. (lododcs umm or tpooie
and dcpcndcDt chUdrcn; mc pp. 18-27 of Instructions.)
dnrlDfl
erosB valoo
•t md of
e.
TTUMetlon daring nponiag parlod
(2)
'ST:
ID
(j-p)
(i)
Vslua
(5^1
If aot mumiit Ina dloelooiu* |
•a?-
(4)
NONE («o r«i)ort.l.l.
locoaa, aaftcts, or
trwiaaetloaa )
1 Condominium (J J
Whatcom County, WA.
«DNE
L
w
' IBM Corp Conmon STK. (J)
A
Div.
L
T
3 Fidelity Investments (J)
C
Div.
L
T
<
L.A. County Sav. Plan
C
Div.
L
T
'l.A. County Deferred Comp.
B
Div.
K
T
' Cal . Judges Retirement Plar
MONE
L
T
' IRA - Fidelity Invest.
A
Div.
J
T
• IRA - Fidelity Invest. (S)
A
Div.
J
J
.
L
T
IBM Tax Deferred Sav. (S)
10
11
12
13
14
15
IC
17
la
19
20
I Isoow/UlD CodMl »-«l,000 or IM* »-Sl,001 to $2,500 C-S2,501 to 5.000 D-15,001 to S'S-JOO
liw Cal. Bl I 041 1-515,001 to 550.000 f-S50.001 to SIOO.OOO O-jlOO.OOl to Sl.OOO.OOO S-Hon tmo Jl.000,000
3 9.1... loim,, J.|u!tM of 1.^ «-ii!',66rto S!5.t54 I..?58.4m lo 5IM.8M 1..J1M.861 to TSSOM
|M« Col. CI 4 D5) ll.J250.001 to S500.000 O-S500.001 to 51.000.000 P-Hor» tll«Il SI. 000. 000
3 VaIoo Mothod CodM: Q-Appral»l »»Co«t i r«*l aBtat* only) 3'kMmmmmmmir.
T-Cj
1109
FINANCIAL DISCLOSURE REPORT (cont'd)
Has* of Parioo Kaportlog
RICHARD A. PAEZ
tMiM Of tmpon
3/10/94
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (indicat. p.rt of Report.)
All Fidelity investments and tax deferred savings and conpensation investments
are invested in diversified mutual funds.
IX. CERTIFICATION.
In compliance with the provisions of 28 U.S.C. § 455 and of Advisory Opinion No. 57 of the Advisory Committee on
Judicial Activities, and to the best of my Icnowledge at the time after reasonable inquiry, I did not perform any adjudicatory
function in any litigation during the period covered by this report in which I, my spouse, or my minor or dependent children
had a finanriai interest, as defined is Canon 3C(3)(c), in the outcome of such litigation.
I certify that all information given above (including information pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was
withheld because it met applicable statutory provisions permitting non.disclosure.
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.CA. app. 7, § 501 et. seq., 5 U.S.C S 7353 and Judicial Conferenoe
regulations.
Signature
/^C^Ciy^
^3'/0'9y
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA. APP. 6, § 104, AND 18 U.S.C } 1001.)
MaU
signed original
and 3 additional
FILING INSTR
copies to:
JCnONS:
Judicial Ethics Committee
Administrative OfQoe of the
United Sutes Courts
Wa.ihington, DC 20544
1110
I1.09S4 1«:15
Si 002
FTNANOAL STATEMENT
NET WORTH
Provide a complete, cnrrem financial net ■wonh statement which itemizes in detail
all assets (including banJc accounts, real estate, securities, trasts. investments, and other financial
holdings) all Labilities Gncluding debts, mongages, loans, and other financial obligations) of
yourself, your spouse, and other immediate members of your household.
ASSETS
LIAXILinES
1
C«fh OB buid u>i m bub
$ 3,
000
Notci ptyibk te bankt-iccand
0
US. GovtmmrBt icam6a-tM
Kfatdul<
0
Noua payibk u bula-<BtKa«d
0
Lijtcd Mcuxi&ci-adi tcbadul*
67,
000
Neiet piyiUe to rcUiivci
0
Unluuul iccuriuu-vU ichedde
0
Nold piyiUc b> Dlbcn
0
1
AecouAU And notei Tccnvable:
0
Acceunu tnd biU> due
S 17,
000
H
Due from rclmiivu w»d fri«j>d<
0
Unpud u)£cun« MX
0
Dm tnm eUio-i
Oihe; anpiid ux tud ioicnit
0
1
Soubtfil
R««] aikie TDcn^afo payible— add
■ehcdtiic
287,
000
Jlcil ntue c'fnei-tii idicdu'.s
465,
ooc
Chinrl msniifa ind ether liou pay-
able
0
1 RcaI cstAJ« DtjTl£ife« rvctivibJc
c
Othu dabu-itimti*:
0
1 Auioi uid olhcr pmaul ptopory
30,
ooc
1 Cwh viJw-UIc uumva
c
OJ»r >nf ii-iicmixi:
240,
ooc
d
(See attached
/
1
schedule. )
Total lin^'t*^**
S270,
000
NitWanh
501,
000
Tout Atmu
$805,
000
Total UabiliiiM and net wenh
S771,
000
1 CONTTVCEVT UABlUnES
OENEIUL XNTOR.MATION
1 Ai •sdoiiu. ooRuacr pi fuvuioi
Non«
Alt iny l(l«t> pM(<d? (AiUadMd.
uk.)
No
Os lfci»ci or oonncu
Non<
A>* yeo dalndail ia any auiti et Itfti
No
\
1
1
1 L«;>J Cliimi
Non<
1
Have ygi; (vb itkn banlraprr,''
No
Pravmon foi rcdoti Income Tu
Non«
Oihc* ffpecia] debt
Non<
L_
__^_.
nil
ASSET SCHEDULE
Real Estate Owned
1. Single Family Residence
2534 Ivanhoe Drive
Los Angeles, CA
Market Value
2. Condominium
7806 Birch Bay Drive
Blaine, WA
Market Value
Listed Securities
Fidelity Investments
Boston, MA
Stock & Bond Mutual Funds
Market Value
Other Assets
Vested Interest In Retirement
Funds
Richard
L.A. County 401 K Savings
L.A. County Deferred Comp.
State Judges' Retirement
Fund
IRA (Fidelity Invest.)
Diane
IBM 401 K Savings
IRA (Fidelity Invest.)
IBM Retirement
Total Other
$375,000
$ 85,000
$ 67,000
$ 55,000
$ 28,000
$ 78,000
$ 7,000
$ 56,000
$ 7,000
$ 9,000
$240,000
1112
LIABILITIES SCHEDULE
Real Estate Mortaaaes Payable
1. 2534 Ivanhoe Drive
Los Angeles, CA
SFR Mortgage (30 yr.) $231,000
7806 Birch Bay Drive
#111
Blaine, WA
Condo. Mortgage $ 56,000
TOTAL $287,000
1113
QUESTIONNAIRE FOR JUDICIAL NOMINEES
I. BIOGRAPHICAL INFORUATION (PUBLIC)
1. Full name (include any former names nsed).
Denise Page Hood
Denise Arlene-Page Hood
Denise Page-Hood
Denise A. Page
2. Address: List current place of residence and office address(es).
Residence: 375 Lodge Drive
Detroit, MI 48214
Office: Wayne County Circuit Court
1501 City-County Building
2 Woodward Avenue
Detroit, MI 48226
3. Date and place of birth.
February 21, 1952; Columbus, OH
4. Marital Statns: (include maiden name of wife, or husband's name). List
spouse's occupation, employer's name and business address(es).
Married to Rev. Nicholas Hood, III
Occupation: Minister - Plymouth United Church of
Christ (Congregational),
600 E. Warren Avenue, Detroit, MI 48201
City Councilman - City of Detroit
1340 City-County Building
2 Woodward Avenue
Detroit, MI 48226
5. Edncation; List each college and law school you have attended, including
dates of attendance, degrees received, and dates degrees were granted.
1114
DBNISE PAGE HOOD 2
5. Edncmtion: List each college and law school you have attended, including
dates of attendance, degrees received, and dates degrees were granted.
Columbia University School of Law, J.D. 1977
attended September 1974 - May 1975 and
September 1975 May 1976
University of Michigan Law School - Visiting Student
attended September 1976 - May 1977
Yale University, Yale College, B.A. 1974
attended September - May 1970-1974
6. Employment Record; List (by year) all business or professional
corporations, companies, firms, or other enterprises, partnerships,
institutions and organizations, nonprofit or otherwise, including firms, with
which you were connected as an officer, director, partner, proprietor, or
employee since graduation from college.
1/93 to Present
5/89 to 12/92
1/83 to 5/89
9/77 to 12/82
Judge
Wayne County Circuit Court
1501 City-County Building
2 Woodward Avenue
Detroit, Ml 48226
Judge
Recorder's Court for the City of Detroit
1441 St. Antoine, Detroit, Ml 48226
Judge
36tli District Court
42 1 Madison Avenue, Detroit, MI 48226
Assistant Corporation Counsel; Law
Intern
City of Detroit, Law Department
1010 City-County Building
2 Woodward Avenue
Detroit, Ml 48226
6/77 to 8/77
Unemployed
1115
DENISE PAGE HOOD
SmmneTS of 1976, Sunmer Intern
1975 and 1974 Detroit City Council
Councilman (Rev.) Nicholas Hood, Sr.
1304 City-County Building
2 Woodward Avenue
Detroit, MI 48226
7. Military Service; Have you had any military service? If so, give
particulars, including the dates, branch of service, rank or rate, serial
number and type of discharge receive.
None.
8. Honors and Awards; List any scholarships, fellowships, honorary degrees,
and honorary society memberships that you believe would be of interest to
the Committee.
Detroit Bar Association-Chairperson of the Year Award - 1988
Detroit Chapter-National Coalition of 100 Black Women - In
Recognition of Outstanding Contributions in Law and Politics Award
- 1992
Black Women Lawyers Association - Judicial Service Award - 1994
9. Bar Associations; List all bar associations, legal or judicial-related
committees or conferences of which you are or have been a member and
give the titles and dates of any offices which you have held in such groups.
American Bar Association
State Bar of BUchigan
Committee on Professionalism, 1992-93
Task Force on Standards for
Assigned Counsel, 1986-87
Judicial Council, 1983-84
Detroit Bar Association
President, 1993-94 (Term ends May 1994)
President-Elect, 1992-93
Secretary/Treasurer, 1991-93
Board Member, 1983-85; 1986-Present
Detroit Barristers, 1982-85
President, 1984-85
President-Elect, 1983-84
Secretary/Treasurer, 1982-83
Volunteer Law Committee, 1985-1990
Chair, 1985-1990
Liberty Bell Committee, 1979-89
1116
DENISE PAGE HOOD
Associmtion of Black Judges of Uichigan
(Member since 1983)
President, 1991-92
President-Elect, 1990-91
Secretary, 1989-90
Board of Directors, 1988-89
Mentor Program, Chair, 1988-89
Michigmn District Jndge Association
Board of Directors, 1985-87
American Inns of Court, 1990-1993
Wolverine Bar Association (Member since 1977)
Board of Directors, 1978 or 1979
Women Lawyers Association of Michigan
Gender Bias Committee, 1989-90
Federal Bar Association
Board of Directors, 1987-89
National Association of Women Judges
National Bar Association Judicial Council
Michigan Supreme Court Committee on Pre Trial Release
Rule, 1988-91
Recorder's Court, Committee on Assigned Counsel,
1990-1993
Wayne County Circuit Court/ Recorder's Court
Administrative Committee, 1992
Michigan Judicial Institute
Circuit Court Advisory Committee, Faculty
Wayne County Neighborhood Legal Services,
Board of Directors, 1979-81; Chair, 1980-81
1117
DENISE PAGE HOOD 5
10. Other Memberships; List all organizations to which you belong that are
active in lobbying before public bodies. Please list all other organizations
to which you belong.
A. 15th District Democratic Party Organization (Michigan
Democratic Party)
Detroit NOW (National Organization for Women)
United Church of Christ
NAACP
B. Plymouth United Church of Christ
Greater Wayne County Chapter, The Links, Inc.
Detroit Study Club (By-laws attached)
Jack & Jill, Detroit Chapter
Association of Municipal Professional Women (Former
Member)
11. r^wTf- Aiimjamion; List all courts in which you have been admitted to
practice, with dates of admission and lapses if any such memberships
lapsed. Please explain the reason for any lapse of membership. Give the
same information for administrative bodies which require special admission
to practice.
«
State Bar of Michigan, October 1977
U.S. District Court E.D., Michigan, October 1977
12. Published w^^Hllg«• List the titles, publishers, and dates of books,
articles, reports, or other published material you have written or edited.
Please supply one copy of all published material not readily available to the
Committee. Also, lease supply a copy of all speeches by you on issues
involving constitutional law or legal policy. If there were press reports
about the speech, and they are readily available to you, please supply them.
(1) Michigan Judicial Institute - Regional Seminar - Outline for
Domestic Violence Presentation
(2) Association of Black Judges of Michigan Newsletters
(See Attached)
13. Health; What is the present state of your health? List the date of your last
physical examination.
ExceUent. September 1992.
1118
DENISE PAGE HOOD
14. Judicial Office: State (chronologically) any judicial offices you have held,
whether such position was elected or appointed, and a description of the
jurisdiction of each such court.
Wayne County Circuit Court, January 1993-Present
Elected November 1992 to six year term
General jurisdiction court, county-wide.
Recorder's Court for the City of Detroit
Appointed to an unexpired term, May 1989 by Governor
James Blanchard
Elected to a six year, November 1990
City-wide criminal felony jurisdiction. Recorder's
Court is administratively combined with Wayne County
Circuit Court for the purpose of hearing criminal
cases county-wide.
36tb District Court
Elected to an eight-year term, November 1982
City-wide limited jurisdiction court; civil actions
under $10,000; small claims; landlord-tenant; traffic
and ordinance matters; preliminary examinations in
criminal cases; misdemeanors.
15. Citations; If you are or have been a judge, provide:
(l)citations for the ten most significant opinions you have written; (2) a
short summary of and citations for all appellate opinions where your
decisions were reversed or where your judgment was alTirmed with
significant criticism of your substantive or procedural rulings; and (3)
citations for significant opinions on federal or state constitutional issues,
together with the citation to appellate court rulings on such opinions. If
any of the opinions listed were not officially reported, please provide copies
of the opinions.
(1) a. The People of the State of Michigan v
Farod Mallory and Gary Goodwin
Recorder's Court Case No. 89-9426
b. The People of the State of Michigan v
Anthony Steven Lynch
Recorder's Court Case No.'s 82-0329 & 82-1668
1119
DENISE PAGE HOOD
c. Robin L. Stamell and Julie B. Repitor v
Masonic Temple Theatre, NED-MAS, Inc., Talent
Coordinators of America, Inc., Centrax Security Services,
Inc., and Orr Security Services, Inc., d/b/a Century Guard
Service, jointly and severally
36th District Court Case No. 86 428 971 PS
d. Robert C. Hawkins, DBA Robert C. Hawkins Realty v
Clarence H. Smithson, a Non-Resident
36th District Court Case No. 4 792 539
e. M.E. Arden Company v Quentin Eatbome
36th District Court Case No. 4 826 675
f. North American Interstate, Inc. v
Salvador Torres, d/b/a Mexican Vintage & Plenque
Restaurant, jointly and severally
36th District Court Case No. 4 798 772
g. Henry Ford Hospital v Theodore Kerney
36th District Court Case No. 4 796 875
h; Phyllis Knox v Cadillac Insurance Company
36th District Court Case No. 4 734 665
i. James Kimbrongh, Jr. v Lewis Senior
36th District Court Case No. 86 438 260
j. Gloria Utsler v Bank of the Commonwealth,
a Michigan Corporation
36th District Court Case No. 82 227 295 CZ
(2) a. People v Katrina Neal
Recorder's Court Case No. 89-04127-02
The Court of Appeals reversed the decision of the trial court
which found the Defendant guilty of Possession of Cocaine.
Defendant was seen rising from a chair at a table covered with
cocaine and paraphernalia used to cut and package crack and
where several hundreds of dollars was on the floor. Defendant
did not live on the premises. A Co-Defendant (also found
guilty), Defendant's aunt, who lived on the premises, had fled
the room and was attempting to hide or dispose of some crack.
1120
DENISE PAGE HOOD 8
The Court of Appeals found there was not sufficient evidence
to show that Defendant was anything more than "merely
present" and reversed.
b. People ▼ Keith Simmons
Recorder's Court Case No. 88-012645
In this case, the Defendant was sentenced to a period of
probation because the trial court felt that the circumstances
of the crime and the probability of rehabilitation of the
Defendant warranted probation. The trial court did not believe
the statute clearly prohibited probation. The Court of Appeals
vacated the sentence. At resentencing, the Defendant, then a
veteran of Desert Storm, was sentenced to a period of
incarceration in the custody of the Michigan Department of
Corrections.
c. People V Mack Tiggart
Recorder's Court Case No. 89-014735
' The Court sentenced on both Murder One and Murder Two.
The Court in response to the Department of Corrections sent
a letter amending the judgment, but the Defendant had
already appealed. The Court vacated the Murder Two sentence
and affirmed on Murder One.
People V Anthony Irvin
Recorder's Court Case No. 90-007965-02
In this case, the trial court suppressed the evidence based on
the law and the credibility of the witnesses. The Court of
Appeals reversed citing Ten^ v Ohio. 392 US 1; 88 S Ct 1868;
20 LEd2d889 (1968).
People V Michael Farrell
Recorders Court Case No. 91-9521-01
In this case, the trial court suppressed evidence based on the
law and the credibility of the witnesses. The Court of Appeals
reversed citing Cfllifnmia v Hodari. 499 US_ ; 1 1 1 S Ct 1547;
113 LEd 2d 690 (1991).
1121
DENISB PAGE HOOD
f. People V Bntris
Recorder's Court Case No. 91-003290
In this case, Defendant's store was searched in anticipation of
a warrant. The officer claimed secondarily that the wife of the
Defendant agreed to the search. An employee or former
employee of the Defendant reported to chain store manager
that the Defendant had goods stolen from the chain store. The
chain store manager went to the police. The officer went to the
store to verify the information before seeking a warrant. He
claimed to have agreement of the person in charge or the
authority under another statute or ordinance. After the search
but before seizing the goods, he obtained a warrant. The Court
of Appeals reversed and sent the case back for trial.
g. People V Marcus Louis Foushee
Recorder's Court Case No. 91-012921-02
The Court of Appeals reversed the trial court's ruling reducing
Defendant's charge to Assault and Battery from Assault with
Intent to Murder on a Motion to Quash. Defendant had pulled
a State Trooper's hands away from a Co-Defendant who was
shouting, "Get his gun... Shoot him!" and other things.
Defendant was charged as an aider and abettor. The Court of
Appeals reversed, finding there was sufficient evidence
produced at the preliminary examination to bind Defendant
over on Assault with Intent to Murder.
(3) None.
16. Public Office: State (chronologically) any public offices you have held,
other than judicial offices, including the terms of service and whether such
positions were elected or appointed. State (chronologically) any
unsuccessful candidacies for elective public office.
None.
17. Legal Career;
a. Describe chronologically your law practice and experience after
graduation from law school including:
1122
DBNISE PAGE HOOD 10
whether you served as clerk to a judge, and if so, the
name of the judge, the court, and the dates of the period
you were a clerk;
No.
whether you practiced alone, and if so, the addresses
and dates;
No.
the dates, names and addresses of law firms or ofiices,
companies or governmental agencies with which you
have been connected, and the nature of your connection
with each;
1977-1982 City of Detroit Law Department
1010 City-County Building
Detroit, MI 48226
Assistant Corporation Counsel
What has been the general character of your law
practice, dividing it into periods with dates if its
character has changed over the years?
1977-1982
- Worked in Labor Section, general labor
relations work, including arbitrations,
civil service hearing officer.
- Worked in Detroit Water and Sewage
Section, advising Water and Sewage
Department, contract compliance and
review work.
Describe your typical former clients, and mention the
areas, if any, in which you have specialized.
Client-employees and departments of the City
of Detroit.
1123
DENISB PAGE HOOD 1 1
1 . Did you appear in court frequently, occasionally, or not
at all? If the frequency of your appearance in court
varied, describe each such variance, giving dates.
Occasionally.
2. What percentage of these appearances was in:
(a) federal courts;
10%
(b) state courts of record;
90%
(c) other courts.
None. However, I did present numerous
cases through mediation hearings, civil
service hearings, and arbitrations.
3. What percentage of your litigation was:
(a) civil;
100%
(b) criminal.
0%
4. State the number of cases in courts of record you tried
to verdict or judgment (rather than settled), indicating
whether you were sole counsel, chief counsel, or
associate counsel.
One, sole counsel at trial. However, I
did many arbitrations and civil service
hearings.
1124
DENISB PAGE HOOD 12
5. What percentage of these trials were:
(a) jury;
100%
(b) non-jury.
0%
18. Litigation: Describe the ten most significant litigated matters which you
personally handled. Give the citations, if the cases were reported, and the
docket number and date if unreported. Give a capsule summary of the
substance of each case. Identify the party or parties whom you
represented; describe in detail the nature of your participation in the
litigation and the final disposition of the case. Also state as to each case:
(a) the dates of representation;
(b) the name of the court and the name of the judge or
judges before whom the case was litigated; and
(c) The individual name, addresses, and telephone
numbers of co-counsel and of principal counsel for
each of the other parties.
During my tenure as an Assistant Corporation Counsel, I was
assigned to two sections: Labor, and Water and Sewerage. I handled
predominantly labor arbitrations, civil service hearings (as an
attorney and a hearing officer), and some lawsuits (including age and
race discrimination). All the lawsuits were amicably settled. I
prepared legislation for City Council and advised clients. I also
assisted several other attorneys on a significant case, DPOA v City of
Detroit, which involved the local police union suing the city over
affirmative action. The suit arose around the time of the Bakkg
decision and was ultimately handled by NAACP Legal Defense Fund
attorneys. In the Water and Sewerage Section, I advised the Water
and Sewerage Department; participated in Board and staff meetings;
did construction claims; advised and handled citizen complaints;
prepared and reviewed contracts; assisted on compliance issues;
participated in bid openings and orientations and did minor
litigation. In a couple of emergency settings, I participated in
negotiating and preparing preliminary agreements and contracts.
1125
DENISE PAGE HOOD 13
Listed below are persons who are familiar with my work as an
attorney and as a judge.
(1) Judge Anna Diggs Taylor
U.S. District Court for the
Eastern District of Michigan
U.S. Courthouse
231 Lafayette Blvd., Room #740
Detroit, MI 48226
(313)226-3433
(2) Darryl F. Alexander
Assistant Corporation Counsel, Detroit
1006 Water Board Building
Detroit, MI 48226
(313) 224-4752
(3) Josephine A. Powell
Josephine A. Powell, P.C.
243 W. Congress, Suite 470
Detroit, MI 48226
(313) 961-7152
(4) Judge Nancy M. Blount
36th District Court
42 1 Madison Avenue, #4070
Detroit, MI 48226-2358
(313) 965-8715
(5) Frank W. Jackson
Blue Cross/ Blue Shield of Michigan
600 E. Lafayette, #1922
Detroit, MI 48226
(313) 225-0802
(6) Judge Pamela R. Harwood
Wayne County Circuit Court
1007 City-County Building
2 Woodward Avenue
Detroit, MI 48226
(313)224-5436
1126
DENISE PAGE HOOD
14
(7)
(8)
(9)
Judge Dalton A. Roberson
Recorder's Court
1441 St. Antoine Street, #801
Detroit, MI 48226-2302
(313) 224-2444
Judge Robert L. Evans
Recorder's Court
1441 St. Antoine Street, #701
Detroit, MI 48226-2302
(313) 224-2464
Carole L. Chiamp
3610 Cadillac Tower
Detroit, MI 48226
(313)961-5660
(10) Cornelius Pitts
3650 Penobscot Building
Detroit, MI 48226-4218
(313) 964-0066
(11) Roger L. Wolcott
One Detroit Center, #3400
500 Woodward Avenue
Detroit, MI 48226-3406
(313) 962-5909
(12) Jeffrey G. Collins
Collins & Walton
1642 First National Building
Detroit, MI 48226
(313)963-5440
19. Legal Activities; Describe the most significant legal activities you have
pursued, including significant litigation which did not progress to trial or
legal matters that did not involve litigation. Describe the nature of your
participation in this question, please omit any information protected by the
attorney-client privUege (unless the privilege has been waived.)
While in 36th District Court, I worked with Judge Pamela R.
Harwood on a program called the Accelerated Case Disposition
Program. This program effectively reduced the backlog of civil cases
in the District Court at the time. Judge Harwood and I tried or
1127
DBNISE PAGE HOOD 15
settled cases on our own joint docket which consisted of nearly all
cases over two years old in the entire court made up of twenty-nine
judges. We tried or settled cases set for trial by other judges that
they could not try on the specified trial date. As part of the program,
we consolidated, for docketing and trial setting, cases of attorneys
with numerous old cases. Some cases were closed administratively
which required locating and closing cases which were settled, had
not progressed, or in which no order had been entered following trial.
At the end of the program, approximately 43% fewer cases were
pending in the court. Our program was recognized by our peers with
a Certificate of Appreciation and noticed by the local legal press and
the Supreme Court of Michigan. The State Court Administrative
Office for our region reported a significant drop in complaints made
about the court after this program.
In about 1988, 1 was asked to serve on a Supreme Court Conmiittee
to review and recommend a new Pre-trial Release Rule for Michigan.
Judge Robert Evans of Recorder's Court was the Chairman of the
Committee. The Committee reviewed the Michigan Constitution, the
Michigan Court Rules, the Bail Reform Act, case law and a then new
piece of Michigan legislation to prepare a recommendation that
reflected the Constitution while still giving meaning to the new
legislation. In the process of doing this, we reviewed a lot of material
about pre-release rules, bond and bail. After several meetings, much
research and several drafts, the Committee made a recommendation
to the Supreme Court.
I have been a member of the Michigan Judicial Institute Advisory
Committee which recommends programs for Regional education and
training seminars for judges. As a result, I was selected to be part
of a team that participated with the Family Violence Project of San
Francisco, California by testing a pilot program on Domestic Violence
to be used nationally. With the team from several states, 1 helped
plan and teach a program through the regional seminars in
Michigan. This program brought judges in Michigan some of the
latest social science and legal information about Domestic Violence.
I have also served as President of the Detroit Bar Association and the
Association of Black Judges of Michigan. I have, through these
positions and as Chair of the Detroit Bar Association Volunteer
Lawyer Committee and a member of the Women Lawyer's Association
Gender Bias Committee, successfully helped lawyers understand
more about issues effecting the profession. Hopefully, I have
enhanced public opinion of the profession through these endeavors.
1128
DENISE PAGE HOOD 16
n. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated receipts from deferred
income arrangements, stock, options, uncompleted contracts and other
future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers,
clients, or customers. Please describe the arrangements you have made to
be compensated in the future for any financial or business interest.
My only expected benefits are from the State Judicial Retirement,
County retirement and my personal insurance.
Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern. Identify
the categories of litigation and financial arrangements that are likely to
present potential conflicts-of-interest during your initial service in the
position to which you have been nominated.
1 do not anticipate any conflicts. However, I would follow the
procedures designated by the Code of Judicial Conduct and the
process for disqualification if required.
3. Do you have any plans, commitments, or agreements to pursue outside
employment, with or without compensation, during your service with the
court? If so, explain.
No, except I would still want to be available for speaking
engagements on a limited basis and consistent with the applicable
rules. I am currently working on the outline of a book on civil
procedure with two other people, but would not pursue this if
prohibited.
4. List sources and amounts of all income received during the calendar year
preceding your nomination and for the current calendar year, including all
salaries, fees, dividends, interest, gifts, rents, royalties, patents, honoraria,
and other items exceeding $500 or more (If you prefer to do so, copies of the
financial disclosure report, required by the Ethics in Government Act of
1978, may be substituted here.)
Please see Financial Disclosure Form.
1129
DENISE PAGE HOOD 17
4.A. FINANCIAL INFORMATION
Please complete the attached financial net worth statement in detail (Add
schedules as called for).
See attached Net Worth Statement.
6. Have you ever held a position or played a role in a political campaign? If
so, please identify the particulars of the campaign, including the candidate,
dates of the campaign, your title and responsibilities.
Yes. In 1978, I volunteered in my husband's campaign for U.S.
Congress. I have also volunteered generally in my father-in-law's
campaigns for City Council prior to 1983.
1130
FINANCIAL STATEMENT
NET WORTH
18
Provide I complett, current dninciil net worth italcfrient which ilemfzet in detail ill itiets (including bi-
•ccounlt. r»jl til»t» ^ecul■ili»l. tnjtii. invttimtntj. »nd other tiojnciil holdlngj) all lijbiii'.ej (including ciet
fTortgjgei, loan}. «nd other linjncitl obligitiont) of younelf, your spouM, md other immedlala members
your household.
ASStTS
(Approximate
ajiiniinTs)
UABIUnES (Approximate
amounts)
C4i^ on hffttf «nd In baAkj
US Cov»<T>m«nt i*nriflT*—*iC
•CTtvOwl*
Lie»<) MCwntln — t^d uhtdul*
Uniin*« Mcuniin— (dd m^«4vI*
Acccu.ia tni nam r«c«viMi:
Du< from r«iinv«t tnd Intndi
Dw« Irom o<htr«
DogbHuI
Rtii «rt«l< ow"«a <dd »ch«duli
Ktii rtliK m«rV|«|n rtcuvttit
Auioi «r>d oth«f p«nonil property
Ctth vtlwf liU InturvACt
Otrx' iil»t» — lt«ml|«;
See below (*)
S.500
ijee bel( i\v-
Other ;^5:spt
;Q4.40CI
?-'^-000
■•^^JrOm
CONTINSCNT UAaiLITICS
120.
I2Q.
£10.
W.
XXL
011
la
Noiat ptribit to Un
No<a p*y«bl4 to b«n
NolM ptfbl* to r«lil/v«t
yrvi
^
Kotu ptratil« to Other* (See below -Oi-hpr n,
Aavuna »na Ullt Out
Unpaid lr>eom« tii
OiKtr unpaid tj> and Irmmt
Rail atlilt mortlilTt payabit — add
K'l adult
Ovanal mo/tii|M and echtr Uxi
pajnbla
Other daMl — Itamlla:
Ford Motor Credit (Auto)
jmQ
53,454
Yale Univ. Tuition Post-
ponement (Option (Student
loan from ^n^^p.p■p)
ToUl llaWlitiaa
Kat «>«<th
Total niblllUn and htl »orih
CtNUtAl INrORMATIOh
550 J9 ' .
00.
CO
Da
00
58
'i_
HQ _
37
30
Ai vndorMr, comikar or fviannior
On laaui or oornncti
Lata! Claimi
Prov<ft<or\ for fwCmrtl tnctmt Tai
Otnar tp«<lal dabt
None
No"P
Nr^ngi
None
None
A/» mrtf au^a al«<5|*d) (^14 KrivO-
ula.)
An }«v dafar^arrt In irry aultl or
latai teoonar
Han you rw tikan haniuvpicy?
No
Jia.
(1) Other Assets:
State of Michigan Judges Retirement Contributions
Wayne Ctounty Retirecient Contributions
Provident National Assurance Con?3any (Spouse's
Pension Plan)
Children's Custodial Accounts (Shearsoh Lehman-
Mutual Funds, U.S. (3ovemment Zero Ctoupons) (1)
Equitable (11 shares at $28.12 in connection with
insurance policy)
$56,915.29
12,449.69
38,413.00
19,675.00
309.32
(2) SEV - State Equalized Value x 2
1131
DENISE PAGE HOOD 19
III. GENERAL (PUBLIC)
1 . An ethical consideration under Canon 2 of the American Bar Association's
Code of Professional Responsibility calls for "every lawyer, regardless of
professional prominence or professional workload, to find some time to
participate in serving the disadvantaged!" Describe what you have done to
fulfill these responsibilities, listing specific instance ad the amount of time
devoted to each.
A. I coordinated a 3 -year school enrichment program through the
Greater Wayne County Chapter, The Links, Inc. at Glazer
Elementary School. Approximately 40 women adopted the
school and one specific class for 3 years, 1989-1992. We
endeavored to put on one program per month during the
school year for students, teachers and parents. The groups
also mentored one grade. I coordinated and helped plan
monthly projects which included programs on: health; AIDS;
Kwanza; breast cancer; art (tap dancing); international
celebrations; and included camperships, art scholarships and
educational field trips.
B. I served as Chairperson of the Volunteer Lawyer Committee of
the Detroit Bar Association from 1988-1992. I had been a
member of the Committee since its inception. The Volunteer
Lawyer Program (VLP) is a pure pro bono program operated in
conjunction with the Wayne County Neighborhood Legal
Services (WCNLS) which provides funding for part of the
program. The WCNLS also screens and sends cases to the
VLP. The VLP then assigns the cases to pro bono attorneys
from the Detroit Bar Association. During my tenure as Chair,
the VLP regularly sponsored educational and training
programs for the VLP panel attorneys and ; handled cases;
decided to remain a "pure" pro bono program (you can only
participate by giving your time to case or by doing intake);
sponsored an "Ask the Lawyer" program for seniors in a
neighborhood setting; produced a newsletter; and investigated
and planned for expansion of the program to include:
assistance with Spouse Abuse Injunctions in connection with
a local battered women's shelter. My Sister's Place;
management of the Federal Bar pro bono program. These
programs are now part of the VLP.
1132
DENISE PAGE HOOD 20
During 1987, the VLP won the prestigious Harrison Tweed
Award awarded by the American Bar Association. In 1988, I
was awarded the Detroit Bar Association's Chairperson of the
Year Award for my efforts with this program.
C. Through another women's organization, I do community
service once per year. In 1991-92, we donated mittens and
worked in the kitchen ofawomen's homeless shelter. In 1992-
93 and 1993-94, we provided various services to support the
public vocational/ technical school where we meet monthly.
I have served on the Boards of the following agencies:
1. The Lnla Belle Stewart Center is a program for teen
parents. Most of the programs are geared to teen
mothers, but Lula Belle Stewart Center has a viable teen
father and peer program. Educational, training services,
child care, and parenting skills classes are available to
teen mothers. Other services include: referrals for
prenatal care and financial assistance; foster care for
teen mom and infant; adoption services; a transmittal
living program (a group home, Mother and Infant
House); and a substance abuse program. I served on
the board for two non-consecutive six year terms.
During my first term, I was active in the Personnel
Committee. During my second term, the Board
continued long term and strategic planning and engaged
in efforts toward financial development.
2. The Cyprian Center is a program for the
developmentally disabled founded around 1974 and
closely related to the Plymouth United Church of Christ.
It is named after my sister-in-law who is severely
retarded. In response to her condition, my father-in-law
dedicated a portion of his time and talent to creating
better community facilities for the developmentally
disabled. The Cyprian Center has several programs.
The Cyprian Center Partial Day Program is for
developmentally disabled adults, including adults who
are physically disabled. It has educational, living and
personal skills and work/ training programs, including
sheltered workshops. Other programs include: a respite
1133
DENISE PAGE HOOD 21
care facility; a community living facility; adult
intermediate services facilities; a program for
developmentally disabled adult females with behavioral
problems; and supported independence programs. Most
of the Cyprian facilities are located in the Medical Center
area. The Board of Directors is a small Board and
operates generally as a Committee of the Whole with an
Executive Committee. It is a policy making board. I
have been on the Board for about ten years.
3. Interim House is a shelter for battered women and their
children affiliated with the YWCA. At the time I was on
the Board, the shelter provided housing, some
transportation, child care and other services designed to
help battered women and their children protect
themselves. I believe the shelter was the only one in
Detroit proper at the time. The shelter generally
provided assistance to women no longer able to live in
their homes. 1 served on the Board for one term.
The American Bar Association's Commentary to its Code of Judicial
Conduct states that it is inappropriate for a judge to hold membership in
any organization that invidiously discriminates on the basis of race, sex, or
religion. Do you currently belong, or have you belonged, to any
organization which discriminates — through either formal membership
requirements or the practical implementation of membership policies? If
so, list with dates of membership. What have you done to try to change
these policies?
No.
Is there a selection commission in your jurisdiction to recommend
candidates for nomination to the federal courts? If so, did it recommend
your nomination? Please describe your experience in the entire judicial
selection process, from beginning to end (including the circumstances
which led to your nomination and interviews in which you participated).
Yes, the Citizens Merit Selection Committee. I received a
questionnaire and completed it. 1 was interviewed by a panel from
the Citizens Merit Selection Committee for less than one hour. I was
one of ten prospective nominees recommended by the Committee.
I was then interviewed by Senators Donald Reigle and Carl Levin.
Following that, I completed questionnaires for the American Bar
1134
DENISE PAGE HOOD 22
Association, the Office of the Attorney General, the FBI and the
United States Senate. I was interviewed by several lawyers from the
Department of Justice. After that, an FBI agent interviewed me. I
provided additional information to the FBI agent. The American Bar
Association's Sixth Circuit representative also interviewed me. I
completed and filed the Financial Disclosure Statement.
4. Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any specific case, legal issue or question in a manner
that could reasonably be interpreted as asking how you would rule on such
case, issue, or question? If so, please explain fully.
No.
5. Please discuss your views on the following criticism involving "judicial
activism."
The role of the Federal judiciary within the Federal government, and within
society generally, has become the subject of increasing controversy in
recent years. It has become the target of both popular and academic
criticism that alleges that the judicial branch has usurped many of
the prerogatives of other branches and levels of government.
Some of the characteristics of this "judicial activism" have been said to
include:
a. A tendency by the judiciary toward problem-solution rather
than grievance-resolution;
b. A tendency by the judiciary to employ the individual plaintiff
as a vehicle for the imposition of far-reaching orders extending
to broad classes of individuals;
c. A tendency by the judiciary to impose broad afllrmative duties
upon governments and society;
d. A tendency by the judiciary toward loosening jurisdictional
requirements such as standing and ripeness; and
e. A tendency by the judiciary to impose itself upon other
institutions in the manner of an administrator with continuing
oversight responsibilities.
1135
DENISB PAGE HOOD 23
The judiciary is involved in the business of dispute resolution. Dispute
resolution may be viewed as the solving of problems that have reached such
serious proportions that the parties are no longer able to resolve their
claims except through the legal process. The trial court manages grievance
resolution through effective case disposition. The citizenry is most
interested in having a fair, impartial and timely proceeding when they come
into the judicial process.
The judiciary is responsible for applying the law of the land in a fair,
impartial and efficient manner. Judges must apply the Constitution and
the laws enacted by the legislature and follow precedent where it has
already been set. In the oaths taken across the nation, judges swear to
uphold first the Constitution of the United States, then the Constitution of
their own state and to support the laws of their particular state. In doing
so, they promise to set aside their personal opinions and biases in favor of
the objectivity that should ultimately lead to justice.
In our system, the judiciary is seen as independent, yet accountable:
accountable in the sense of commitment and attention to the requirements
of the office and the role of the judiciary in relation to the two other
branches of government; independent in the sense that neither the sway of
public opinion nor personal bias should impact the decision making
process.
1136
DENISE PAGE HOOD 24
ATTACHMENTS
I. BIOGRAPHICAL INFORMATION
A. 10(B)- OTHER BIEMBERSHIPS
B. 12(1) & (2) - PUBLISHED WRITINGS
C. 15(1) • CITATIONS/OPINIONS
D. 15(2) - CITATIONS/ REVERSALS
n. FINANCIAL DATA AND CONFLICT OF INTEREST
E. 4 - FINANCIAL DISCLOSURE FORM
1137
AFFroAVIT
(PUBLIC)
I, DENISE PAGE HOOD, do swear tlutt the information provided in this
statement is, to the best of my knowledge, true and accurate.
3/^
i/9±
(i5ate)
9^
(NGCTAR
lliui day oi UoAch, 1994
County oi (ilaym, Exp: 9-30-97
1138
PAUL L. FRIEDMAN
SENATE JUDICIARY COMMITTEE QUESTIONNAIRE
FOR JUDICIAL NOMINEES
I. BIOGRAPfflCAL INFORMATION (PUBLIC)
1. Pull nane (include any former names used.)
Paul Lawrence Friedman
2. Address: List current place of residence and office
address (es) .
Residence: 3 042 P Street, N.W.
Washington, D.C. 20007
Office: White & Case
1747 Pennsylvania Avenue, N.W.
Suite 500
Washington, D.C. 20006
3. Date and place of birth.
Birth date: February 20, 1944
Place of
birth: Buffalo, New York
4> Marital Status (include maiden name of wife, or
husband's name). List spouse's occupation/ employer')
name and business address (es).
Married.
Spouse: Elizabeth Ann Friedman
(maiden name: Elizabeth Ann Zicherman)
Executive Director
Institute for Professional and Executive
Development, Inc. (Peabody & Brown,
previously Kelley, Drye & Warren)
2300 M Street, N.W.
Washington, D.C. 20037
1139
5. Education; List each college and law school you have
attended, including dates of attendance, degrees
received, and dates degrees were granted.
College:
School
Cornell University
Ithaca, New York
Law School:
School
New York University
School of Law
School of Law, State
University of New
York at Buffalo
Buffalo, New York
Dates
Dearee
1961-65
B.A.
June 1965
pates
Dearee
1965-66
N/A
1966-68
J.D.
May 1968
£• Employment Record: List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and
organizations, nonprofit or otherwise, including
firms, with which you were connected as an officer,
director, partner, proprietor, or employee since
graduation from college.
Summer. 1965 and Summer. 1966
Assistant, Mortgage Department
Buffalo Savings Bank
(later Golddome Bank)
Buffalo, New York
Summer and Fall. 1967; Spring. 1968
Law Clerk
Saperston, Wiltse, Duke, Day & Wilson
(now Saperston & Day)
Three Fountain Plaza
Buffalo, New York 14203
-2-
1140
August. 1968-JulY. 1969
Law Clerk to the Honorable Aubrey E. Robinson, Jr.
United States District Court for the
District of Columbia
United States Courthouse
333 Constitution Avenue, N.W.
Washington, D.C. 20001
July. 1969 to August. 1970
Law Clerk to the Honorable Roger Robb (deceased)
United States Court of Appeals
for the District of Columbia Circuit
United States Courthouse
333 Constitution Avenue, N.W.
Washington, D.C. 20001
October. 197 0-August. 1974
Assistant United States Attorney
Office of the United States Attorney
for the District of Columbia
555 4th Street, N.W.
Washington, D.C. 20001
August. 1974-Mav. 1976
Assistant to the Solicitor General
of the United States
Office of the Solicitor General
United States Department of Justice
10th Street and Constitution Avenue, N.W.
Washington, D.C. 20530
May. 1976-present
Associate, May, 1976-October, 1979
Partner, October, 1979-present (Executive Partner,
Washington Office, 1987-present)
White & Case
1747 Pennsylvania Avenue, N.W.
Suite 500
Washington, D.C. 20006
-3-
1141
January 6. 1987-Mav 26. 1988 (on a partial leave of
absence from White & Case)
Associate Independent Counsel
Office of Independent Counsel /Iran-Contra
Investigation
1726 M Street, N.W.
Suite 300
Washington, D.C, 20036
7. Military Service; Have you had any military service?
If so, give particulars, including the dates, branch
of service, rank or rate, serial number and type of
discharge received.
I have not had any military service.
8. Honors and Awards; List any scholarships,
fellowships, honorary degrees, and honorary society
memberships that you believe would be of interest to
the Committee.
Cornell University
President, Cornell Student Government
President, Senior Men's Honorary Society (Quill
and Dagger)
School of Law, State University of New York at Buffalo
Graduated cum laude (fourth in class)
Associate Editor, Buffalo Law Review
Award for best written contribution to law review
David Ruslander Award for Wills and Trusts
Trial Lawyers Association Award
Fellow, American College of Trial Lawyers
Member, American Law Institute
Fellow, American Bar Foundation
Member, American Academy of Appellate Lawyers
Young Lawyer of the Year Award presented by The
Bar Association of the District of Columbia
(1977)
Listed in Who's Who In American Law
Listed in Naif eh & Smith, The Best Lawyers in America
-4-
1142
9. Bar Associations; List all bar associations, legal or
judicial-related committees or conferences of which
you are or have been a member and give the titles and
dates of any offices which you have held in such
groups .
American Bar Association
State Delegate for the District of Columbia
(1993-present)
Nominating Committee (1993-present)
House of Delegates (1985-present) : Select
Committee of the House (1992-present) ;
Tellers Committee (1990-92)
Commission on Women in the Profession (1993-
present)
Chair, Commission on Homelessness and Poverty
(1991-1993)
Chair, Representation of the Homeless Project
(1988-91)
Standing Committee on Legal Aid and Indigent
Defendants (1989-91)
Standing Committee on Continuing Education of
the Bar (1982-88)
Appellate Advocacy Committee, Appellate
Judges' Conference, Judicial Administration
Division (1982-85)
Vice Chair, Committee on the Trial of Complex
Business Crimes, Litigation Section (1981-
83) (member, 1977-83)
Fellow, American Bar Foundation (1984-present)
District of Columbia Bar
President (1986-87)
President-elect (1985-86)
Board of Governors (1978-81, 1985-88)
Executive Committee (1985-88)
Nominating Committee (1986-88)
Chair, Budget Committee (1985-86)
Chair, Long Range Planning Committee (1984-90)
Referendum Impact Committee (1984-86)
Continuing Legal Education Committee (1983-84)
Chair, Federal Practice Committee, Litigation
Section (1982-84)
Chair, Committee to Study the Disciplinary
System (1979-81)
Steering Committee, Division on Criminal Law and
Individual Rights (1974-75)
Advisory Committee, D.C. Bar Foundation (1986-
present)
-5-
1143
Bar Association of the District of Columbia
Annual Banquet Committee (1984)
Recipient, Young Lawyer of the Year Award (1977)
Vice Chair (1975-76) and Secretary (1976-77),
Young Lawyers Section
The Women's Bar Association of the District of
Columbia (1984-present)
The Federal Bar Association (1984-present)
The Hispanic Bar Association of the District of
Columbia (19 8 5 -present)
The Washington Bar Association (1985-present)
New York State Bar Association (1986-present)
American Law Institute (1984-present)
ALI-ABA Committee on Continuing Professional
Education (1988-1993)
Chair, Advisory Committee, Practice Evaluation
Project (1990-91)
Editorial Board, The Practical Litigator (1990-
present)
American College of Trial Lawyers (1984-present)
Regents Nominating Committee (1992)
D.C. State Committee (1991-present)
Committee on Special Problems in the
Administration of Justice (1990-present)
American Academy of Appellate Lawyers (1992-present)
American Judicature Society
Board of Directors (1990-1994)
Committee on Justice Reform (1992-1993)
Assistant United States Attorneys Association of the
District of Columbia
President (1976-77)
Vice President (1975-76)
Chair, Civil Justice Reform Act Advisory Group, United
States District Court for the District of Columbia
(1991-1994)
-6-
1144
Chair, District of Columbia Judicial Nomination
Commission (1992-present) and member of Commission
(1990-present)
Board of Trustees, District of Columbia Public
Defender Service (1989-92)
Grievance Committee, United States District Court for
the District of Columbia (1981-87). Chair (1983-85).
Advisory Committee on Procedures, United States Court
of Appeals for the District of Columbia Circuit (1982-
88) .
Judicial Conference of the District of Columbia
Circuit (1976-present) . Arrangements Committee (1980,
1990)
Judicial Conference of the District of Columbia (1979-
present) . Arrangements Committee (1982, 1986)
Founder, Board Member and Vice President, Washington
Legal Clinic for the Homeless (1987-92)
Board Member, Frederick B. Abramson Memorial
Foundation (1991-present) . President (1991-February
1994)
Board of Directors, Stuart Stiller Memorial Foundation
(1980-present)
Board of Directors, Washington Area Lawyers for the
Arts (1988-92)
Steering Committee, Lawyers' Committee for the
Performing Arts, Washington Performing Arts Society
(1987-91)
10. other Memberships; List all organizations to which
you belong that are active in lobbying before pviblic
bodies. Please list all other organizations to which
you belong.
To my knowledge, I do not belong to any
organizations active in lobbying before public bodies.
I do belong to the following clubs and organizations:
The Lawyers' Club of Washington
The Federal City Club
Cornell Club of New York
Jumby Bay Club
-7-
1145
Council for Excellence in Government
Washington Performing Arts Society
Washington Project for the Arts
Citizens Association of Georgetown
2691 Club of WETA TV/FM
11. Court Admission; List all courts in which you have
been admitted to practice, with dates of admission and
lapses if any such memberships lapsed. Please explain
the reason for any lapse of membership. Give the same
information for administrative bodies which require
special admission to practice.
Court
United States Supreme Court
Date
October ,
1974
United States Court of Appeals December,
for the District of Columbia 1969
Circuit
United States District Court November,
for the District of Colximbia 1969
District of Columbia Coxirt
of Appeals
retro-
active to
November ,
1969i'
Superior Court of the
District of Columbia
October ,
1970
United States Court of Appeals October,
for the Federal Circuit 1982
United States Court of Appeals August,
for the Fourth Circuit 1986
United States Court of Appeals October,
for the Sixth Circuit 1987
United States Court of Appeals June,
for the Seventh Circuit 1979
United States Court of Appeals October,
for the Ninth Circuit 1975
i' Before court reorganization, the licensing authority
was the U.S. District Court for the District of Columbia.
-8-
1146
United States Court of Appeals September,
for the Eleventh Circuit 1986
United States Claims Court January,
1977
New York State Supreme Court December,
1968
12. Published Writings; List the titles, publishers, and
dates of books, articles, reports, or other published
material you have written or edited. Please supply
one copy of all published material not readily
availaa>le to the Committee. Also, please supply a
copy of all speeches by you on issues involving
constitutional law or legal policy. If there were
press reports about the speech, and they are readily
available to you, please supply them.
A. Published Writings^
1. Final Report of the Civil Justice Reform Act
Advisory Group for the United States
District Court for the District of Columbia
(with S.A. Saltzburg and E.H. Paret) (August
1993) .
2. "Overhauling Discovery: Automatic
Disclosure and Presumptive Limits Under the
Proposed Amendments to Rules 26 Through 37,"
Rediscovering Discovery: Litigating Under
the Revised Federal Rules of Civil Procedure
(Legal Times, June 22, 1993).
3. "Speeding Up Justice at the District Court,"
Legal Times of Washington (Apr. 19, 1993).
4. "Appellate Advocacy: Basic Principles of
Effective Brief Writing and Oral Argument,"
Appellate Advocacy in the District of
Columbia (D.C. Bar, 1991).
5. Friedman & Currier, "Grand Jury Practice in
Complex Corporate Criminal Investigations,"
Handling Government Investigations (Business
Laws, 1990 Supp, ) .
Copies of these writings are submitted herewith.
-9-
1147
6. "Subpoenas to Defense Lawyers in Criminal
Cases: A Part of the ^Assault on the
Citadel'," Assault on the Citadel. ABA
Litigation Section Fall Meeting (ABA, 1990) .
7. "Problems and Opportunities in Parallel
Civil and Criminal Proceedings: Protecting
Your Client from Fire on All Sides," Banks
Under Attack (ABA, 1989) .
8. "Relations with the Government During
Investigations and Particular Problems that
Arise in Representing Foreign Corporations
in Grand Jury Proceedings," Federal
Enforcement 1988 (D.C. Bar/ABA, 1988).
9. "The Bork Vacancy: Why Not Someone from the
District?", The Washington Post (Feb. 14,
1988) .
10. "No Local Lawyers Need Apply: How About
Some Home-Grown Judges On Our Highest
Appeals Court?", The Washington Post
(May 25, 1987) .
11. "The Trouble With Lawyers — Who's To
Blame?", The National Law Journal (May 25,
1987) .
12. "A Bully Pulpit — And a Lot More," The
Washington Lawyer (May/ June 1987) .
13. "Something 'Wrong' with the Legal
Profession: Image or Reality?," The
Washington Lawyer (March/April 1987) .
14. "Alternative Dispute Resolution," The
Washington Lawyer (January/ February 1987) .
15. "Pro Bono: The Ups and Downs," The
Washington Lawyer (November/December 1986) .
16. "Time to End A Tradition," The Washington
Lawyer (September /October 1986) .
17. "Renewed Purpose in Our Second Decade,"
District Lawyer (July/August 1986) .
18. "Roger Robb: The Lessons of a Lawyer,"
District Lawyer (May/June 1986) .
-10-
1148
19. Friedman & Wilson, Representing Foreign
Clients in Civil Discovery and Grand Jury
Proceedings. 26 Virginia Journal of
International Law 327 (1986).
20. "Debarment and Suspension: The Government's
Most Powerful Weapons," Procurement Fraud
Prosecutions and Debarments (ABA, 1986) .-'
21. "The Law and Tactics of Global Settlements,"
Procurement Fraud Prosecutions & Debarments
(ABA, 1986) J'
22. "Unique Problems Resulting from Parallel
Criminal, Civil and Administrative
Proceedings," Government Contracts:
Investigation. Prosecution and Defense
of Criminal and Civil Fraud Charges (ABA,
1985) .2'
23. "Pre-Trial Discovery in Civil RICO Actions,"
RICO: The Second Stage (ABA, 1984).
24. "Grand Jury Secrecy After Sells and
Baqqott , " Government Contracts:
Investigation. Prosecution and Defense of
Criminal and Civil Fraud Charges (ABA,
1985) .
25. Friedman & Taylor, "Plea Negotiations in
White Collar Crime Cases: Making the Best
of a Bad Deal," Settlement and Plea
Bargaining (Assoc, of Trial Lawyers of
America, 1981) .
26. Parallel Grand Jury and Administrative
Agency Investigations (987 pages) (Editor
with Neil A. Kaplan, Robert S. Bennett,
Helen C. Trainor) (ABA, 1981) .
27. "Freedom of Information Act Problems Under
the Foreign Corrupt Practices Act Review
Procedure," The New Review Procedure Under
the Foreign Corrupt Practices Act II
(Harcourt Brace, 1980) .
y Earlier versions of these three articles also appeared
in virtually identical form in Fraud in Government
Contracting (Law & Business, Inc. /Harcourt Brace
Jovanovich, 1985) .
-11-
1149
28. "Meaning of the Term ^Corruptly' Under the
Foreign Corrupt Practices Act of 1977" (with
J. Sullivan and S. T. Pollack), The New
Review Procedure Under the Foreign Corrupt
Practices Act II (Harcourt Brace, 1980) .
B. Speeches on Issues Involving Constitutional
Law or Legal Policv^^
1. Appellate Advocacy. October 29, 1993, Washington,
D.C., D.C. Bar/George Washington University CLE
Program, panelist. Topic; "From the Lectern:
Appellate Argument." (See Published Writings,
Tab 4 ) .
2. Rediscovering Discovery: Litigating Under the
Revised Federal Rules of Civil Procedure.
June 22, 1993, Washington, D.C, Legal Times
Seminar. Topics: Discovery practice and
procedures, mandatory disclosure, experts,
sanctions. (See Published Writings, Tab 2).
(comments also available on videotape) .
3. Pro Bono: Charting a Course to Justice.
April 17, 1993, Baltimore, Maryland, American Bar
Association Pro Bono Conference, moderator.
Topics: Homeless programs and projects of
various bar association groups around the
country.
4. Developments in Civil Justice Reform in Our Local
and Federal Courts. February 23, 1993,
Washington, D.C, D.C Bar Winter Convention.
Topics; Discovery and core disclosure, limits on
depositions and interrogatories, case management,
alternative dispute resolution.
5. Civility; A Casualty of Modern Litigation.
February 22, 1993, Washington, D.C, D.C. Bar
Winter Convention. Topics; State of
civility/ incivility in civil litigation, causes
*' Many of the speeches listed here were given as part of
a panel discussion or other presentation at a continuing
legal education program. Most of those were based upon the
writings included in response to Question 12(A) which were
prepared in conjunction with the same program. In those
cases, there was no other written text. In other cases, my
remarks were extemporaneous. Where there was a separate
written text, it is submitted herewith. I am not aware of
any press reports about these speeches.
-12-
1150
of incivility, ethical considerations, civility
and discovery.
6. Appellate Advocacy in the District of Columbia.
October 23, 1992, Washington, D.C., D.C.
Bar/George Washington University CLE Program,
D.C. Bar and U.S. Court of Appeals for the D.C.
Circuit, panelist. Topic; "On Paper: Appellate
Briefs." (See Published Writings, Tab 4).
7. Sympathy or Cynicism? Homelessness. The Press
and The Public, August 9, 1992, San Francisco,
California, American Bar Association Commission
on Homelessness and Poverty, moderator. Topics;
Media coverage of homelessness, public
perceptions of the homeless, and reactions of
government officials.
8. The Impact of Civil Justice Reform on Litigants
and Practitioners; Is D.C. The Next Rocket
Docket?. February 19, 1992, Washington, D.C,
D.C. Bar Winter Convention. Topics; Civil
justice reform, proposed amendments to the
Federal Rules of Civil Procedure.
9. The Civil Justice Reform Act. October 26, 1991,
Chicago, Illinois, American Bar Association
Section of Litigation Fall Meeting. Topics;
Alternative dispute resolution and settlement.
10. Appellate Advocacy in the District of Columbia.
October 11, 1991, Washington, D.C, D.C. Bar/G.W.
University CLE Program and U.S. Court of Appeals
for the D.C. Circuit, panelist. Topic; "From
the Lectern: Appellate Argument." (See
Published Writings, Tab 4).
11. Assault on the Citadel. Fifteenth Annual Fall
Meeting, American Bar Association Section of
Litigation, October 19, 1990, Philadelphia,
Pennsylvania, ABA, moderator and panelist.
Topic: "Subpoenas to Defense Lawyers in Criminal
Cases: A Part of the Assault on the Citadel."
(See Published Writings, Tab 6) .
12. Forfeiture of Attorneys' Fees. Subpoenas to
Criminal Defense Lawyers. Prosecutors' Direct
Communications with Persons Represented by
Counsel, and Other Intrusions into the Attorney-
Client Relationship. May 22, 1990, Hershey,
Pennsylvania, Proceedings of the Fifty-first
Judicial Conference of the District of Columbia
-13-
1151
circuit, 134 F.R.D. 321, 416. Topics;
Forfeitures, subpoenas, prosecutors' direct
communication with represented individuals. (See
Speeches, Tab 1) .
13. Federal Enforcement 1990; A New Era in Trial
Tactics. Enforcement Priorities and Defense
Strategies. May 17, 1990, Washington, D.C.,
Georgetown University Law Center Continuing Legal
Education Division. Topic; "Grand Jury Practice
in Complex Corporate Criminal Investigations."
(See Published Writings, Tab 5) .
14. Effective Argument to the Court. May 4-6, 1989,
Washington, D.C. American Bar Association Section
of Litigation, panelist. Topics; "Brief writing:
A Lawyer's and Judge's Perspective"; "Arguments
to the United States Court of Appeals."
(comments available on videotape)
15. Banks Under Attack; Criminal Prosecutions and
Civil Proceedings. April 6-7, 1989, Dallas,
Texas, ABA Section of Litigation. Topic;
"Problems and Opportunities in Parallel Civil and
Criminal Proceedings" (including discovery,
stays, global settlements, collateral
consequences) . (See Published Writings, Tab 7) .
16. U.S. Attornev's Office Training Program for New
Assistant U.S. Attorneys. October 18, 1988 and
January 10, 1989, Washington, D.C, U.S.
Attorney's Office for the District of Columbia.
Topics; Ethics and professional obligations of a
prosecutor.
17. The Lawyer As Counsellor. Witness and Defendant.
October 19, 1988, Washington, D.C, ABA
Litigation Section Fall Meeting. Topic; "Unique
Problems Facing the Defense Bar in the 1980s."
18 . Dispute Resolution; Exploring the Bar
Association's Role. September 8-9, 1988, Chicago,
Illinois, ABA Standing Committee on Dispute
Resolution, panelist. Topic; "Conducting A
Court Settlement Week."
19. Federal Enforcement 1988; Defending
Corporations. Their Officers. Directors and
Employees. April 7-8, 1988, Washington, D.C,
D.C Bar/American Bar Association. Topics:
"Relationship with the Government During
Investigations and Representing Foreign
-14-
1152
Corporations in Grand Jury Proceedings." (See
Published Writings, Tab 8) .
20. Judicial Selection: How it Works and How the Bar
Can Effectively Participate. May 13, 1988,
Washington, D.C., The Sixth Annual Judicial
Conference of the United States Court of Appeals
for the Federal Circuit, 122 F.R.D. 281, 296.
(See Speeches, Tab 2).
21. Appellate Advocacy and Practice. May 11, 1988,
Washington, D.C., Georgetown University Law
Center/D.C. Bar Continuing Legal Education
Program, panelist. Topic; Brief writing.
22. The AIDS Epidemic; Appropriate Roles for
Lawyers. March 16, 1988, Washington, D.C., D.C.
Bar Health Law Section/D.C. Medical Society, ,
speaker. Topic; Responsibilities of the legal/
profession in response to the AIDS epidemic. /
(See Speeches, Tab 3) .
23. Fundamentals of Grand Jury Practice — and
Critical Practical Problems. February 29, 1988,
Washington, D.C, Georgetown University Law
Center/D.C. Bar Continuing Legal Education,
faculty. Topics; Rule 6, representing
corporations and individuals before grand juries,
immunity, grand jury abuse.
24. AIDS: The Bar Faces the Crisis. National
Conference of Bar Presidents, American Bar
Association, August 8, 1987, San Francisco,
California, speaker. Topic: Contributions the
organized Bar can make with respect to the AIDS
crisis. (See Speeches, Tab 4) .
25. Legal Issues Affecting Homeless People: The D.C.
Bar Homeless Project. American Bar Association
Section of Individual Rights and
Responsibilities, 1987 ABA Annual Meeting,
August 10, 1987, San Francisco, California,
panelist. Topics; Legal and other related
issues facing the homeless, the D.C. Bar's
homeless program. (See Speeches, Tab 5) .
26. Rule 11 and Other Sanctions. Proceedings of the
Forty-eighth Judicial Conference of the District
of Columbia Circuit, May 30, 1987, Hot Springs,
Virginia, panelist. Topic; Interpretations,
proposed uses, and potential abuses of amended
-15-
1153
Rule 11 and other court imposed sanctions. (See
Speeches, Tab 6) .
27. Statement at Press Conference Announcing the
Creation of Washington Lawyers Against Drugs.
January 28, 1987, Washington, D.C., The D.C. Bar.
Topic; Creation of Bar organization to assist
D.C. students in halting the distribution and use
of illegal drugs. (See Speeches, Tab 7).
28. Statement on Establishment of Settlement Week.
November 12, 1986, Washington, D.C, District of
Columbia Courthouse. Topic; Establishment of
Court Settlement Week, alternative dispute
resolution. (See Speeches, Tab 8) .
29. Directions for the Bar in 1986-87. Installation
as the Fifteenth President of the D.C. Bar,
June 25, 1986, Washington, D.C, The D.C Bar.
(See Speeches, Tab 9) .
13. Health; What is the present state of your health?
List the date of your last physical examination.
My health is excellent. My last complete
physical examination was on February 14, 1994.
14. Judicial Office; State (chronologically) any judicial
offices you have held, whether such position was
elected or appointed, and a description of the
jurisdiction of each such court.
I have never held judicial office.
15. Citations; If you are or have been a judge, provide:
(1) citations for the ten most significant opinions
you have written; (2) a short summary of and citations
for all appellate opinions where your decisions were
reversed or where your judgment was affirmed with
significant criticism of your substantive or
procedural rulings; and (3) citations for significant
opinions on federal or state constitutional issues,
together with the citation to appellate court rulings
on such opinions. If any of the opinions listed were
not officially reported, please provide copies of the
opinions.
I have never held judicial office.
-16-
1154
16. Public Office; State (chronologically) any public
offices you have held, other than judicial offices,
including the terms of service and whether such
positions were elected or appointed, state
(chronologically) any unsuccessful candidacies for
elective public office.
I have never held or run for public office.
17. Legal Career;
a. Describe chronologically your law practice and
experience after graduation from law school
including;
1. whether you served as clerk to a judge, and
if so, the name of the judge, the court, and
the dates of the period you were a clerk;
Judge and court:
The Honorable Aubrey E. Robinson, Jr.
United States District Court for the
District of Columbia
United States Courthouse
333 Constitution Avenue, N.W.
Washington, D.C. 20001
202-273-0470
Dates of employment:
August, 1968-July, 1969
Judge and court:
The Honorable Roger Robb^'
United States Court of Appeals
for the District of Columbia Circuit
Dates of employment:
July, 1969 to August, 1970
2. whether you practiced alone, and if so, the
addresses and dates;
I have not practiced alone.
Judge Robb is deceased.
'I
-17-
1155
3. the dates, names and addresses of law firms
or offices, companies or governmental
agencies with which you have been connected,
and the nature of your connection with each;
Employer:
Office of the United States Attorney for the District
of Columbia
Address:
555 4th Street, N.W.
Washington, D.C. 20001
Position:
Assistant United States Attorney
Nature of work:
Prosecution and trial of criminal cases in the United
States District Court for the District of Columbia and
the Superior Court of the District of Columbia.
Argument of civil and criminal appeals in the U.S.
Court of Appeals and the D.C. Court of Appeals.
Presentation of matters before the grand jury. As
Administrative Assistant United States Attorney (1973-
74), advised U.S. Attorney on policy, legal and
management issues; directed development of training
programs; and represented U.S. Attorney on District of
Columbia Criminal Justice Coordinating Board and on
District of Columbia Advisory Committee on Drug Abuse
Prevention.
Dates of employment:
October, 1970-August, 1974
Employer:
Office of the Solicitor General
United States Department of Justice
Address:
10th Street and Constitution Avenue, N.W.
Washington, D.C. 20530
-18-
1156
Position:
Assistant to the Solicitor General of
the United States
Mature of work:
Preparation of petitions for writs of certiorari and
oppositions and briefs on the merits for filing in the
Supreme Court of the United States on behalf of the
United States and various government departments and
agencies. Argued five cases in the United States
Supreme Court.
Dates of employment:
August, 1974-May, 1976
Employer:
White & Case
Address:
1747 Pennsylvania Avenue, N.W.
Suite 500
Washington, D.C. 20006
Position:
Associate (1976-79)
Partner (1979-present)
Executive Partner, Washington Office (1987-present)
Type of practice or nature of work:
Litigation primarily in United States District Courts
and United States Courts of Appeals and before
administrative agencies, as well as counseling and
advising clients, with respect to a wide range of
subject areas, including white collar crime matters
and related debarment and suspension proceedings,
civil litigation involving securities, banking,
insurance and commercial matters, administrative
agency proceedings and investigations, and appellate
advocacy.
Dates of employment:
May, 1976-present
Associate, May, 1976-October , 1979
-19-
1157
Partner, October, 1979-present
Employer:
Office of Independent Counsel /Iran-Contra
Investigation
Address:
1726 M Street, N.W.
Suite 3 00
Washington, D.C. 2 0036
Position:
Associate Independent Counsel
Kature of work:
Investigation and prosecution of the Iran-Contra
matter during the pre-indictment phase. Served as a
principal deputy to Independent Counsel Lawrence E.
Walsh in the early stages of the investigation and
handled most pre-indictment motions respecting the
grand jury and the validity of the Independent Counsel
statute and regulations in the U.S. District Court and
most appeals concerning those matters in the U.S.
Court of Appeals.
Dates of employment:
January 6, 1987-May 26, 1988 (on a partial leave of
absence from White & Case)
b. 1. What has been the general character of your
law practice, dividing it into periods with
dates if its character has changed over the
years?
In my nearly eighteen years at White & Case
(May 1976 to the present) , I have specialized in
part in the defense of federal white collar crime
investigations and prosecutions, including grand
jury representation, federal criminal antitrust
cases, defense procurement fraud cases and the
parallel civil and administrative proceedings
that often result, including debarment and
suspension from government contracting. I have
also represented corporations and their officers
in SEC enforcement and other administrative
agency proceedings and investigations, and I have
-20-
1158
conducted internal corporate investigations and
have counseled corporate clients on various
compliance matters.
My civil litigation experience in the United
States District Courts has included general
commercial litigation, matters arising from
departments and agencies of the U.S. Government,
constitutional litigation, and securities,
banking, bankruptcy, insurance and antitrust
litigation, including major corporate takeover
cases under the federal securities laws. I have
also maintained an active appellate practice in
the United States Court of Appeals for the
District of Columbia Circuit and in other federal
appellate courts around the country. In the
Supreme Court of the United States, I have
prepared numerous petitions for certiorari and
oppositions and briefs on the merits for parties
and for clients who wished to participate as
amicus curiae before the Court. I recently
argued a case before the Court.
As an Assistant to the Solicitor General
(1974 to 1976) , I represented the United States
and numerous federal agencies in both civil and
criminal litigation in the Supreme Court. I
drafted approximately 15 briefs on the merits,
dozens of petitions for writs of certiorari and
hundreds of briefs and memoranda in opposition.
I argued five cases before the Supreme Court of
the United States.
As an Assistant United States Attorney (1970
to 1974) , I tried approximately 75 jury and non-
jury misdemeanor cases while serving in the
Superior Court Division of the United States
Attorney's Office, presented hundreds of felony
cases to the grand jury and conducted over 100
preliminary hearings in felony cases. I later
tried cases in the United States District Court,
appearing primarily before the late Judge William
B. Jones and Judge Oliver Gasch and occasionally
before other District Court judges, including
Judge John H. Pratt, Judge William B. Bryant and
the late Judge John J. Sirica. During this
period, I tried murder cases before Judges Jones
and Pratt and armed robbery, burglary, narcotics
distribution and forgery cases, among others,
before Judges Jones and Gasch. I had a total of
approximately 30 jury trials in the United States
District Court. In the Appellate Division of the
-21-
1159
United States Attorney's Office, I argued both
civil and criminal appeals in both the United
States Court of Appeals for the District of
Columbia Circuit and the District of Columbia
Court of Appeals. I also handled special
assignments for the U.S. Attorney's Office
Watergate prosecutors.
2. Describe your typical former clients, and
mention the areas, if any, in which you have
specialized.
During my career in private practice, my
typical clients have included corporations and
their officers and employees, including financial
institutions, insurance companies, and government
contractors, among others.
I have specialized primarily in:
(1) criminal antitrust, environmental, banking,
defense procurement fraud and other white collar
crime matters, including grand jury
representation and related debarment and
suspension proceedings; (2) civil litigation
involving corporate takeovers, commercial,
securities, insurance, banking, bankruptcy and
constitutional matters; (3) administrative agency
proceedings and investigations, including recent
matters before the SEC, FTC and OTS; and (4)
appellate advocacy, including briefing and oral
argument in the U.S. Supreme Court and federal
circuit courts of appeals.
c. 1. Did you appear in court frequently,
occasionally, or not at all? If the
frequency of your appearances in court
varied, describe each such variance, giving
dates.
I was in court frequently, almost daily,
during a number of years as an Assistant United
States Attorney. As noted above, as an Assistant
United States Attorney (1970 to 1974), I tried
approximately 75 jury and non-jury misdemeanor
cases while serving in the Superior Court
Division of the United States Attorney's Office,
presented hundreds of felony cases to the grand
jury and conducted over 100 preliminary hearings
in felony cases. I later tried cases in the
United States District Court, including murder,
armed robbery, burglary, narcotics distribution
and forgery cases, among others. I had a total
-22-
1160
of approximately 30 jury trials in the United
States District Court.
During my nearly eighteen years in private
practice, my in-court experience was less
frequent than during my years in the United
States Attorney's Office. It has consisted of
primarily non-jury trials, administrative agency
proceedings, extensive motion practice and
appellate arguments. In recent years, the nature
of my practice required my appearance in court
most often with respect to arguments on motions,
hearings and appellate arguments. I was in court
more frequently during my earlier years in
private practice because of certain cases that
required more in-court time.
By way of example, in 1987 and 1988, I was
in court on behalf of clients on a criminal
antitrust case which ended in a plea on the eve
of trial, on post-trial proceedings in another
criminal case and in several appellate arguments.
During that period, I was also in court very
frequently (both in the U.S. District Court and
the U.S. Court of Appeals) on behalf of the
Office of Independent Counsel/ Iran-Contra
Investigation.
In 1989, I was in court frequently with
respect to a major corporate takeover case
involving numerous requests for temporary
restraining orders and preliminary injunctions
and a wide range of substantive and procedural
motions, including numerous discovery disputes.
I also argued that case and others in the U.S.
Court of Appeals. In 1990, I was in court less
frequently on the same takeover litigation.
In 1991, I was in court occasionally on two
significant matters involving the Foreign
Sovereign Immunities Act and jurisdiction over
foreign entities, one in federal court in Texas
and one in New York. I also argued a major case
in the United States Supreme Court and an appeal
in the D.C. Circuit.
In 1992, I tried a significant case in the
United States Bankruptcy Court in Delaware on
behalf of the Pension Benefit Guaranty
Corporation. The remainder of my work in 1992
and much of my work in 1993 was before
administrative agencies or in dealings with
-23-
1161
prosecutors and grand juries on behalf of clients
and not in court.
2. What percentage of these appearances was in:
(a) federal courts: 80%
(b) state courts of record: 20%
(c) other courts: 0%
3. What percentage of your litigation was:
(a) civil: 60%
(b) criminal: 4 0%^
4. State the number of cases in courts of
record you tried to verdict or judgment
(rather than settled) , indicating whether
you were sole counsel, chief counsel, or
associate counsel.
Over the course of my career, I have
tried over 100 cases to verdict or judgment,
almost all as sole or lead counsel. Most of
the cases in which I have been involved
since I have been in private practice have
not gone to trial. In the type of civil
litigation practice in which I have
specialized, most of the cases were resolved
on motions for summary judgment or motions
to dismiss or have been settled before
trial. Cases I have handled that have gone
to trial, such as the Air Micronesia/PBGC
and AOV cases, discussed below, have been
non-jury trials. I was lead counsel in
these cases.
In my white collar criminal practice,
the goal, from a client's standpoint, is to
resolve the matter before indictment, either
by persuading the government that there is
insufficient evidence to indict or that the
client is an important witness who (with or
without immunity, depending on the
circumstances) can assist the government at
trial. In some cases, a plea is appropriate
at a time very close to trial, after pre-
trial hearings and trial preparation are
nearly completed. As a result of my success
-' Including grand jury proceedings and pre-indictment
motions and negotiations.
-24-
1162
in these matters, I have had no criminal
cases that have gone to trial in recent
years.
The pre-indictment, grand jury-related
litigation that I have handled as part of ray
white collar criminal practice takes place
in closed proceedings. Under Rule 6(e) of
the Federal Rules of Criminal Procedure, I
am bound to keep this information
confidential. Similarly, the litigation I
handled for the Office of Independent
Counsel in the U.S. District Court was pre-
indictment litigation that was closed to the
public because it was related to the
proceedings of the grand jury. I am bound
to keep this information confidential as
well under Rule 6(e), except in those cases
where there later was a public appeal
(discussed in responses to Question 18).
5. What percentage of these trials was:
(a) jury: 50%
(b) non-jury: 50%
18. Litigation; Describe the ten most significant
litigated matters which you personally handled. Give
the citations, if the cases were reported, and the
docket niiffiber and date if unreported. Give a capsule
summary of the substance of each case. Identify the
party or parties whom you represented; describe in
detail the nature of your participation in the
litigation and the final disposition of the case.
Also state as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge
or judges before whom the case was litigated; and
(c) the individual name, addresses, and telephone
numbers of co-counsel and of principal counsel
for each of the other parties.
1. EEOC V. Aramco, 111 S.Ct. 1227 (1991)
The issue in this case, which I briefed and
argued before the Supreme Court of the United
States on behalf of Aramco, was whether the
employment discrimination provisions (Title VII)
-25-
1163
of the Civil Rights Act of 1964 apply to U.S.
employers of U.S. citizens in workplaces outside
the United States. In arguing that they did not,
I emphasized the long-standing presumption of
American law, based on notions of comity and
respect for the sovereignty of other nations,
that U.S. laws do not apply outside the territory
of the United States unless Congress has clearly
stated an affirmative intent to so extend them.
This argument prevailed (6-3) , and the Court
reaffirmed the strong presumption against the
application of American law extraterritorially in
the absence of a clear, affirmative Congressional
intent to do so expressed in the statute. The
majority opinion was written by the Chief
Justice, with a concurring opinion by Justice
Scalia and a dissent by Justice Marshall.
Because of the reaffirmation of this principle
for the first time in more than 30 years, the
case was quite significant in the field of
international law. After this decision. Congress
amended Title VII to make clear its present,
affirmative intent to apply those protections to
U.S. employees of U.S. companies in foreign
workplaces.
a. Dates: Argument, January 16, 1991
Decision, March 26, 1991
b. Judges and court: United States Supreme Court
c. Co-counsel and principal counsel for other
parties:-'
John D. Roady, Esq.
Hutcheson & Grundy
3 3 00 Citicorp Center
1200 Smith Street
Houston, Texas 77002
tel. no. 713-951-2841
V. Scott Kneese, Esq.
Bracewell & Patterson
2900 South Tower Pennzoil Place
Houston, Texas 77002
tel. no. 713-223-2900
-' I have not included the names of counsel for the
numerous amici on both sides.
-26-
1164
Thomas J. O' Sullivan, Esq.
White & Case
1155 Avenue of the Americas
New York, New York 1003 6
tel. no. 212-819-8200
Anne D. Smith, Esq.
White & Case
1747 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
tel. no. 202-872-0013
The Honorable Kenneth W. Starr (argued)
(then Solicitor General)
Kirkland & Ellis
655 Fifteenth Street, N.W.
Suite 1200
Washington, D.C. 20005
tel. no. 202-879-5130
John G. Roberts, Jr., Esq.
(then Deputy Solicitor General)
Hogan & Hartson
555 - 13th Street, N.W.
Washington, D.C. 20004
tel. no. 202-637-5810
Stephen J. Nightingale, Esq.
(then Assistant to the Solicitor General)
Aetna Life & Casualty Insurance
Law & Regulatory Affairs, RE4C
151 Farmington Avenue
Hartford, Connecticut 06156
tel. no. 203-273-6355
Michael A. Maness, Esq.
Law Offices of Michael A. Maness
1900 North Loop West
Suite 500
Houston, Texas 77018
tel. no, 713-680-9922
2. In re Continental Airlines. Inc.. Debtors.
Pension Benefit Guaranty Corp. v. Continental
Airlines. Inc.. Air Micronesia. Inc. and the
Continental /Air Micronesia Joint Venture. Civil
Action No. 92-37, Adv. Proc. No. 92-2, U.S.
Bankruptcy Court for the District of Delaware
This case, which I tried before the United
States Bankruptcy Court for the District of
Delaware, involved claims by our client, the
-27-
1165
Pension Benefit Guaranty Corporation ("PBGC") , a
U.S. Government agency established by Congress to
administer the pension plan insurance program
created under ERISA, that Continental's Pacific
business, operated through a joint venture with
Air Micronesia, Inc., constituted a separate
entity liable to PBGC for the unfunded pension
liabilities of Continental of approximately
$700 million. The PBGC also claimed that it held
a lien on all of the assets of the joint venture,
valued at between approximately $214 million and
$570 million. A substantial' portion of that
value, perhaps the airline's most valuable single
asset, was attributable to the international
route authorities used by the joint venture.
The case was significant because, as
acknowledged by Continental during the trial, the
PBGC claims placed a "cloud" over Continental's
most valuable assets. Without resolving the
claims by the PBGC relating to the joint venture,
Continental was not able to emerge from
bankruptcy nor able to use those assets for an
asset sale or financing necessary to continue
operations. The case involved complex issues of
the nature of a property right held by an airline
in international route certificates issued by the
Department of Transportation, the nature of those
property rights as they relate to underlying
international aviation agreements, the liability
of joint venture partners for unfunded pension
liabilities under ERISA and the extent of the
rights of the PBGC to place a lien upon assets of
a company with unfunded pension liabilities.
While PBGC did not prevail at trial,
numerous issues were created for appeal and, soon
after the trial, PBGC and Continental recommenced
negotiation of a settlement valued at
approximately $130 million, including the
transfer to PBGC of an interest in fifteen
airplanes and a lien on Continental's Newark-to-
Paris route. The settlement removed the cloud on
the Continental assets, allowing Continental to
conclude a substantial new capital investment and
to emerge from bankruptcy.
a. Dates: Trial, May 7-8, 1992
b. Judge and court: Judge Helen S. Balick
United States Bankruptcy Court
for the District of Delaware
-28-
1166
Co-counsel and principal counsel for other
parties:
Norman L. Pernick, Esq.
Prickett, Jones, Elliott, Kristol & Schnee
1310 King Street
Wilmington, Delaware 19899
tel. no. 302-888-6500
Lawrence L. Landgraff, Esq.
Pension Benefit Guaranty Corporation
2020 K Street, N.W.
Suite 7200
Washington, D.C. 20006
tel. no. 202-778-8824
John J. McAvoy, Esq.
Victor J. DeSantis
White & Case
1747 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
tel. no. 202-872-0013
Gary M. Ford, Esq.
John P. McAllister, Esq.
Thomas S. Gigot, Esq.
Groom & Nordberg
1701 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
tel. no. 202-857-0620
Geoffrey M. Kalmus, Esq. (retired)
Kramer, Levin, Nastalis, Nessen,
Kamin & Frankel
919 Third Avenue
New York, NY 10022
tel. no. 212-715-9100
Laura Davis Jones, Esq.
Young, Conaway, Stargatt & Taylor
11th Floor
Rodney Square North
P.O. Box 391
Wilmington, Delaware 19899
tel. no, 302-571-6600
-29-
1167
3. Sea Containers Ltd. v. Stena AB . AB Stena Finans.
Stena Finance B.V. . Dan Sten Olsson and Sten
Allan Olsson. Civil Action No. 89-0752, U.S.
District Court for the District of Columbia
This corporate takeover litigation, in which
I was lead counsel for Sea Containers in both the
U.S. District Court for the District of Columbia
and the U.S. Court of Appeals for the District of
Columbia Circuit, arose out of the 1989 takeover
attempt by Stena, a Swedish ferry corporation, of
Sea Containers, a Bermuda corporation engaged in
the container shipping and ferry businesses with
its headquarters in London. Sea Containers'
common stock is listed on the New York Stock
Exchange, and the U.S. securities laws therefore
applied to the takeover. Litigation relating to
the takeover took place in the courts of Bermuda,
the federal courts of the District of Columbia
and, later, the courts of the United Kingdom.
There were several motions in the U.S.
District Court for the District of Columbia for
temporary restraining orders and preliminary
injunctions, some involving complex legal issues
vis-a-vis the corporate securities and corporate
laws of three different sovereigns, and questions
involving the overlapping jurisdiction of the
courts of those different countries. In addition
to preparing briefs and making all the legal
arguments in court, I supervised and coordinated
discovery of documents and witnesses in four
different countries (the United States, the
United Kingdom, Sweden and Bermuda) , which
involved simultaneous depositions in all of those
countries and the presentation of numerous
discovery disputes to the District Court. We
prevailed on the most important issues in the
District Court and on the Section 13(d) issues in
the Court of Appeals; we ultimately lost in the
Court of Appeals on issues relating to anti-suit
injunctions. A negotiated solution was
ultimately reached among the parties.
The case was of national and international
significance for several reasons. First, it
involved one of the first tests of the use of a
U.S. -style "poison pill" by a foreign corporation
and the first test of the legality of purchases
by a subsidiary of a Bermuda corporation of its
parent's stock. Because of Bermuda's growing
importance as a place of incorporation for
-30-
1168
multinational corporations, the case was watched
closely by the international financial community,
especially by those in the mergers and
acquisitions field interested in the possibility
of creating new international takeover defenses
through use of Bermuda incorporation.
The case also involved novel issues relating
to international comity, the respective
jurisdictions of the U.S. courts and foreign
courts in cases involving intertwined issues
under U.S. securities laws and foreign corporate
laws, and the reporting obligations of "groups"
under Section 13 (d) of the Securities Exchange
Act of 1934. The case created new law under
Section 13(d) of the Securities Exchange Act of
1934 and furthered the jurisprudence on anti-suit
injunctions in the context of parallel U.S. and
foreign litigation. Sea Containers Ltd. v. Stena
AB, 890 F.2d 1205 (D.C. Cir. 1989).
Dates: The initial complaint was filed on
March 22, 1989. Motions for temporary
restraining orders and preliminary
injunctions, as well as discovery and
discovery disputes, occurred from April
through July, 1989. Additional motions
practice occurred in October and
November, 1989. The argument in the
Court of Appeals took place on
September 21, 1989, and the decision
was issued on December 1, 1989.
Parallel litigation in the Supreme
Court of Bermuda occurred during June
and July of 1989.
Judges and courts: Judge John Garrett Penn
United States District Court
for the District of
Columbia
Judges Laurence H. Silberman,
Stephen F. Williams and
Douglas H. Ginsburg
United States Court of
Appeals for the District of
Columbia Circuit
-31-
1169
Co-counsel and principal counsel for other
parties:
Richard W. Reinthaler, Esq.
White & Case
1155 Avenue of the Americas
New York, New York 10036
tel. no. 212-819-8200
John J. McAvoy, Esq.
Christopher M. Curran, Esq.
White & Case
1747 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
tel. no. 202-872-0013
John M. Nannes, Esq.
Skadden, Arps, Slate, Meagher & Flom
1440 New York Avenue, N.W.
Washington, D.C. 20005
tel. no. 202-371-7000
Robert E. Zimet, Esq.
Jay B. Kasner, Esq.
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, NY 10022
tel. no. 212-735-2520
Douglas D. Broadwater, Esq.
Cravath, Swaine & Moore
Worldwide Plaza
82 5 Eighth Avenue
New York, NY 10019
tel. no. 212-474-1000
John H. Pickering, Esq.
James Robertson, Esq.
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
tel. no. 202-663-6167
Securities Industry Ass'n v. Board of Governors
of the Federal Reserve System and Bankers Trust
Co. . 807 F.2d 1052 (D.C. Cir. 1986), cert,
denied. 483 U.S. 1005 (1987)
In this case, I was lead counsel for Bankers
Trust Company in the United States Court of
Appeals for the District of Columbia Circuit and
in the Supreme Court of the United States. (I
-32-
1170
had been involved in the latter stages of the
District Court proceedings but not as lead
counsel. )
The issue was whether the Glass-Steagall
Act, which has as its general purpose separating
commercial banking from investment banking,
permitted our client. Bankers Trust Company (and
other commercial banks) , to market commercial
paper, short term lOUs issued by corporations.
The Court of Appeals reversed the District
Court's decision denying the right of commercial
banks to engage in such activity and reinstated
the decision of the Federal Reserve System
granting the right. As a result of this case,
commercial banks have emerged as major market
players in placing commercial paper as agents for
others, enabling them to engage in a multi-
billion dollar business from which they had been
excluded previously, and permitted them to help
corporations nationwide raise working capital.
The United States Supreme Court declined to hear
the case on a writ of certiorari.
a. Dates: Argued, April 4, 1986
Decided, December 23, 1986
Certiorari denied, June 22, 1987
b. Judges and court: Judges Abner J. Mikva, Harry
T. Edwards and Robert H.
Bork
United States Court of Appeals
for the District of Columbia
Circuit
c. Co-counsel and principal counsel for other
parties:-'
John W. Barnum, Esq.
Christopher M. Curran, Esq.
White & Case
1747 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
tel. no. 202-872-0013
- I have not included the names of counsel for the
numerous amici on both sides.
-33-
1171
Laura B. Hoguet, Esq.
White & Case
1155 Avenue of the Americas
New York, New York 10036
tel. no. 212-819-8200
James A. Weidner, Esq.
David A. Schulz, Esq.
Rogers & Wells
200 Park Avenue
New York, NY 10166
tel. no. 212-878-8000
Richard M. Ashton, Esq.
Associate General Counsel
Office of the General Counsel
Board of Governors
The Federal Reserve System
20th & C Streets, N.W.
Washington, D.C. 20551
tel. 202-452-3750
5. In re Sealed Case (Oliver North) . 666 F. Supp.
231 (D.D.C. 1987), affirmed. In re Sealed Case
(Oliver North) . 829 F.2d 50 (D.C. Cir. 1987),
cert, denied. 484 U.S. 1027 (1987)
This case involved the authority of the
Independent Counsel to act in the investigation
and prosecution of criminal cases in certain
circumstances in lieu of the United States
Department of Justice. I handled the proceedings
on behalf of Independent Counsel Lawrence E.
Walsh in the United States District Court for the
District of Columbia and in the United States
Court of Appeals for the District of Columbia
Circuit.
Oliver North had been held in contempt by
the District Court for refusing to comply with a
grand jury subpoena, maintaining that the
subpoena was rendered unlawful by virtue of its
having been issued upon application of the Office
of the Independent Counsel, rather than upon
application by the United States Department of
Justice or the United States Attorney. The first
question was whether the issue of the Independent
Counsel's authority was appropriate for judicial
resolution (that is, "ripe for review") at the
time of the issuance of the grand jury subpoena
resulting in a contempt citation. The U.S. Court
of Appeals ruled that it was and remanded to the
-34-
1172
District Court for further proceedings. In re
Sealed Case (Oliver North) . 827 F.2d 776 (D.C.
Cir. 1987) (Judges Starr, Silberman and D.H.
Ginsburg) .
In the further proceedings, the District
Court held that the Independent Counsel was
constitutionally authorized to act on the basis
of his appointment under a regulation issued by
the Attorney General delegating the investigative
and prosecutorial authority normally exercised by
the Attorney General to Independent Counsel
Walsh. In re Sealed Case (Oliver North) . 666 F.
Supp. 231 (1987) . The District Court upheld the
Independent Counsel's authority and the authority
of his Associate Counsel under the Attorney
General's appointment but found it unnecessary to
address the question of the constitutionality of
the Independent Counsel provisions of the Ethics
in Government Act. The decision was affirmed on
appeal. In re Sealed Case (Oliver North) . 829
F.2d 50 (D.C. Cir. 1987), cert, denied. 484 U.S.
1027 (1988).
District Court proceedings: May 8, 1987 and
July 10, 1987
Court of Appeals proceedings in No. 87-5168:
Argued, June 3, 1987
Decided, June 8, 1987
Court of Appeals proceedings in No. 87-5247:
Argued, August 5, 1987
Decided, August 20, 1987
Judges and courts: Judge Aubrey E. Robinson,
Jr.
United States District Court
for the District of
Columbia
Judges Ruth Bader Ginsburg,
Stephen F. Williams and
Douglas H. Ginsburg
United States Court of
Appeals for the District of
Columbia Circuit
-35-
1173
Co-counsel and principal counsel for other
parties:
Judge Lawrence E. Walsh
Crowe & Dunlevy
1800 Mid-America Tower
2 0 North Broadway
Oklahoma City, Oklahoma 73102
tel. no. 405-235-7789
Guy M. Struve, Esq.
Davis, Polk & Wardwell
4 50 Lexington Avenue
New York, New York 10017
tel. no. 212-450-4192
Brendan V. Sullivan, Jr., Esq.
Barry S. Simon, Esq.
Terrence O'Donnell, Esq.
Nicole K. Seligman, Esq.
Williams & Connolly
Edward Bennett Williams Building
725 Twelfth Street, N.W.
Washington, D.C. 20005
tel. no. 202-434-5000
James M. Spears, Esq.
(then Deputy Assistant Attorney General,
Civil Division, U.S. Dept. of Justice)
Mudge, Rose, Guthrie, Alexander & Ferdon
2121 K Street, N.W.
Washington, D.C. 20037
tel. no. 202-429-9355
Douglas N. Letter, Esq.
Civil Division
Department of Justice
10th & Pennsylvania Avenue, N.W.
Washington, D.C. 20530
tel. no. 202-514-3602
United States v. Paradvne Corp. . Criminal No. 85-
202-Cr-T-l7, U.S. District Court for the Middle
District of Florida (Tampa Division) , mandamus
issued. In re Paradvne Corp.. In re Siegrist. 803
F.2d 604 (llth Cir. 1986).
This criminal case against Paradyne and
eight of its officers involved alleged fraud
respecting a contract for computer terminals
entered into between Paradyne and the Social
Security Administration. I was lead counsel for
-36-
1174
William R. Siegrist, a senior vice president of
Paradyne. After protracted grand jury
proceedings and litigation with the government,
the case was resolved before trial. In addition
to representing my client in the District Court
before and after indictment, I argued a petition
for a writ of mandamus in the U.S. Court of
Appeals for the Eleventh Circuit. In re Paradyne
Corp. . In re F. William Siegrist. 803 F.2d 604
(11th Cir. 1986) .
The mandamus petition challenged the
district court judge's announced plans to
interview in camera and outside the presence of
counsel, individual defendants, witnesses and
attorneys in order to determine whether certain
defense counsel and former defense counsel
received information protected by the attorney-
client privilege of various individuals. It also
sought an order directing the district court to
conduct a hearing to permit one defendant to
waive his right to conflict-free counsel and to
release a sealed transcript of an ex parte
presentation made by the government to the
district court. The Court of Appeals found that
the procedures proposed by the District Judge
would constitute "serious and unwarranted
incursions on the constitutional rights of
defendants" and issued the writ of mandamus.
a. Dates: The indictment was returned on
December 12, 1985. Proceedings in the
District Court took place at various
times from January 2, 1986 through
July 8, 1986. The petitions for writs
of mandamus were filed on August 13,
1986. The argument in the Court of
Appeals took place soon thereafter and
the decision was issued on October 14,
1986.
b. Judges and courts: Judge Elizabeth A.
Kovachevich
United States District Court
for the Middle District of
Florida
-37-
1175
Judges James C. Hill, Phyllis
A. Kravitch and R. Lanier
Anderson, III
United States Court of
Appeals for the Eleventh
Circuit
c. Co-counsel and principal counsel for other
parties:
G. William Currier
White & Case
1155 Avenue of the Americas
New York, New York 10036
tel. no. 212-819-8200
Kathleen Ambrose
1113 Longworth House Office Bldg.
Washington, D.C, 20515
tel. no. 202-225-4155/4157
Brendan V. Sullivan, Jr.
F. Whitten Peters
Gerald A. Feffer
Williams & Connolly
Edward Bennett Williams Bldg.
725 Twelfth Street, N.W.
Washington, D.C. 2 0005
tel. no. 202-434-5000
Herbert J. Miller
Raymond G. Larroca
Miller, Cassidy, Larroca & Lewin
2555 M Street, N.W.
Suite 500
Washington, D.C. 20037
tel. no. 202-293-6400
Leonard C. Greenebaun
Thomas Hylden
Baker & Hostetler
Washington Square, Suite 1100
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
tel. no. 202-861-1500
James H. Kynes
Kynes and Markman
P.O. Box 3396
Tampa, Florida 33601
tel. no. 813-229-1118
-38-
1176
Terrance Alan Smiljanich
Blasingame, Forizf & Smiljanich
P.O. Box 1259
St. Petersburg, Florida 33731
tel. no. 813-823-3837
Morris Weinberg
Zuckerman, Spaeder, Taylor & Evans
Harnett Plaza
101 East Kennedy Boulevard
Suite 3140
Tampa, Florida 33602
tel. no. 813-221-1010
Terry A, Zitek
Andrew Grosso
United States Attorney's Office
for the Middle District of Florida.
500 Zack Street
Tampa, Florida 33602
tel. no. 813-228-2700
In re AOV Industries. Inc.. Consolidated Bankr.
Case No. 81-00617, U.S. Bankruptcy Court for the
District of Columbia, affirmed. 31 Bankr. 1005
(D.D.C. 1983), 43 Bankr. 468 (D.D.C. 1984),
affirmed. 792 F.2d 1140 (D.C. Cir. 1986)
I was lead counsel for AOV Industries in the
Bankruptcy Court, the U.S. District Court and the
U.S. Court of Appeals for the District of
Columbia Circuit. At the time, this was the
largest bankruptcy case in the history of the
District of Columbia. There were several
adversary proceedings tried before Bankruptcy
Judge Roger Whelan at which testimony was taken.
There were a variety of other motions and
proceedings in the Bankruptcy Court resulting in
numerous oral opinions from the Bankruptcy Judge.
There were two published opinions in the District
Court, the most significant being the District
Court's confirmation of the debtors' Chapter 11
reorganization plan. See In re AOV Industries.
Inc. . 31 Bankr. 1005 (D.D.C. 1983); see also AOV
Industries. Inc. . 43 Bankr. 468 (D.D.C. 1984).
The confirmation of the plan was affirmed by the
U.S. Court of Appeals. In re AOV Industries.
Inc. . 792 F.2d 1140 (D.C. Cir. 1986),
Not only did the confirmation of this
complex reorganization plan involve novel and
interesting questions under the Bankruptcy Code,
-39-
1177
it also involved fundamental questions of
Bankruptcy Court jurisdiction in view of the then
recent decision of the Supreme Court in Northern
Pipeline Construction Co. v. Marathon Pipe Line.
458 U.S. 50 (1982), in which the Supreme Court
held that many of the jurisdictional provisions
of the Bankruptcy Reform Act of 1978 were
unconstitutional. This case was the first case
to test the emergency bankruptcy rule adopted in
this District after Northern Pipeline. The
District Court and the Court of Appeals found
that that emergency rule struck a permissible
constitutional balance between the proper roles
of the Bankruptcy Court and the District Court.
The procedures that we recommended to the
District Court and that were adopted in the
confirmation of the AOV reorganization plan were
found appropriate and constitutional by the Court
of Appeals. The plan was confirmed by the
District Court and the confirmation was approved
by the Circuit Court.
Dates: Proceedings in the Bankruptcy Court
took place during 1982 and early 1983.
Proceedings in the District Court took
place in 1983 and 1984, with decisions
being issued by the District Court on
July 26, 1983 and September 27, 1984.
The argument in the Court of Appeals
took place on March 8, 1985 and the
decision was issued on June 6, 1986.
Judges and courts: Judge Judge Roger Whelan
United States Bankruptcy
Court for the District
of Columbia
Judge Charles R. Richey
United States District Court
for the District of
Columbia
Judges Patricia M. Wald,
Abner J. Mikva and
Kenneth W. Starr
United States Court of
Appeals for the District
of Columbia Circuit
-40-
1178
c. Co-counsel and principal counsel for other
parties:
John W. Barnuin, Esq.
Anne D. Smith, Esq.
White & Case
1747 Pennsylvania Avenue, N.W.
Washington, D.C. 2006
tel. no. 202-872-0013
Charles A. Docter, Esq.
Docter & Docter
1325 G Street, N.W.
Suite 700
Washington, D.C. 20005
tel. no. 202-628-6800
Stanley M. Salus, Esq.
Wickwire Gavin, P.C.
Two Lafayette Centre
Suite 450
1133 21st Street, N.W.
Washington, D.C. 20036
tel. no. 202-887-5200
Edward L. Genn, Esq.
Brown, Genn & Genn
11300 Rockville Pike
Suite 1008
North Bethesda, MD 20852
tel. no. 301-881-7700
Peter K. Stackhouse, Esq.
Walsh, Colucci & Stackhouse
2200 Clarendon Blvd.
Arlington, VA 22201
tel. no. 703-528-4700
Louis A. Scarcella, Esq.
Phillips, Nizer, Benjamin, Krim & Ballon
600 Old Country Road
Suite 241
Garden City, NY 11530
tel. no. 516-228-9595
-41-
1179
8. United States v. The Progressive. Inc.. 467 F.
Supp. 990 (W.D. Wise, 1979), appeal dismissed as
moot after oral argument, United States v. The
Progressive. Inc.. Erwin Knoll. Samuel Day. Jr.
and Howard Norland. Nos. 79-1428, 79-1664 (7th
Cir. 1979)
I represented Howard Morland, the author of
"The H-Bomb Secret: How We Got It — Why We're
Telling It," which ultimately was published in
The Progressive magazine, in the later stages of
the District Court litigation and in the United
States Court of Appeals for the Seventh Circuit.
I worked on the preparation of the briefs and
shared oral argument with Bruce J. Ennis (now of
Jenner & Block) .
The District Court had entered what turned
out to be the longest prior restraint order in
the nation's history, what we called in our brief
"the first preliminary injunction against press
publication of political speech in the nation's
history." Morland, an honorably discharged Air
Force pilot, a commercial pilot and a free-lance
writer, had pieced together from publicly
available sources what many termed the "secret"
of how to build a hydrogen bomb. On the basis of
affidavits alone and without an evidentiary
hearing, the District Court issued first a
temporary restraining order and then a
preliminary injunction. On appeal, we argued
that the prior restraint was a violation of the
First Amendment, that the Atomic Energy Act of
1954 was unconstitutional, and that the
injunction would not be effective. The case was
mooted after oral argument before the Seventh
Circuit when another individual wrote a letter to
a Congressman setting forth much of the same
information and the letter was published. No
appellate opinion ever issued.
a. Dates: Argument in Seventh Circuit:
September 13, 1979
b. Judges and courts: Judge Robert W. Warren
United States District Court
for the Western District
of Wisconsin
-42-
1180
Judges Walter Cuininings,
Wilbur Pell and William
Bauer
United States Court of
Appeals for the Seventh
Circuit
c. Co-counsel and principal counsel for the United
States:
Bruce J. Ennis, Jr., Esq.
Jenner & Block
601 13th Street, N.W.
12th Floor
Washington, D.C. 20005
tel. no. 202-639-6000
Mark H. Lynch, Esq.
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20044
tel. no. 202-662-5544
John J. McAvoy, Esq.
White & Case
1747 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
tel. no. 202-872-0013
Thomas S. Martin, Esq. (argued)
(then Deputy Assistant Attorney General)
Shearman & Sterling
801 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
tel. no. 202-508-8000
Stuart E. Schiffer, Esq.
(then Acting Assistant Attorney General)
Civil Division
Department of Justice
Room 3 611
10th & Constitution Avenue, N.W.
Washington, D.C. 20530
tel. no. 202-514-3306
Robert E. Kopp, Esq.
Civil Division, Appellate Staff
Department of Justice
Room 3 617
9th & Pennsylvania Avenue, N.W.
Washington, D.C. 20530
tel. no. 202-514-3311
-43-
1181
Michael F, Hertz, Esq.
Civil Division
Department of Justice
Room 364 5
10th & Constitution Avenue, N.W.
Washington, D.C. 20530
tel. no. 202-514-7179
Elizabeth Sarah Gere, Esq.
Ross, Dixon & Masback
601 Pennsylvania Avenue, N.W.
North Building
Washington, D.C. 20004
tel. no. 202-662-2043
9. Gerstein v. Puqh. 420 U.S. 103 (1975)
The issue in this criminal case, which I
briefed and argued in the Supreme Court on behalf
of the United States, was whether the due process
clause of the Fourteenth Amendment requires a
system of preliminary hearings before a judicial
officer after the filing of a formal criminal
charge by a prosecutor by way of information and,
if so, whether the determination must be made at
an adversary hearing with live testimony. The
Supreme Court held that the Fourth Amendment
requires a judicial determination of probable
cause as a prerequisite to any extended restraint
of liberty following arrest (a prosecutor's
determination was found not to be sufficient) ,
but that an evidentiary, adversary hearing is not
required. Probable cause under the Fourth
Amendment may be decided by a magistrate in a
non-adversary proceeding on hearsay and written
testimony. The "Gerstein hearing" is now standard
procedure in state courts around the country and
in federal courts in misdemeanor cases.
a. Dates: Argument, March 25, 1974
Reargued, October 21, 1974
Decided, February 18, 1975
b. Judges and court: United States Supreme Court
-44-
1182
c. Co-counsel and principal counsel for other
parties :-
The Honorable Robert H. Bork
American Enterprise Institute
1150 - 17th Street, N.W.
Washington, D.C. 20036
tel. no. 202-862-5851
Andrew L. Frey, Esq.
Mayer, Brown & Piatt
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
tel. no. 202-463-2000
Bruce S. Rogow, Esq. (argued)
Professor of Law
Nova University Law Center
3305 College Avenue
Ft. Lauderdale, FL 33314
tel. no. 305-452-6163
Leonard R. Mellon, Esq. (argued)—
N. Joseph Durant, Jr. , Esq.
Assistant Public Defender
Office of the Public Defender for
Dade County
13 51 Northwest 12th Street
8th Floor
Miami, FL 33125
tel. no. 305-545-3078
10. United States v. Nobles. 422 U.S. 225 (1975)
The issue in this case, which I briefed and
argued in the Supreme Court on behalf of the
United States, was whether in a criminal trial
after the completion by the government of its
case-in-chief and following the direct
examination of a defense witness, the court may
require the defense to provide the prosecutor,
for the purpose of possible impeachment on cross-
examination, with prior written statements of the
9/
I have not included the names of counsel for the
numerous amici on both sides.
^ I can find no current address and telephone number for
Leonard R. Mellon, Esq., who argued the case for the State
of Florida.
-45-
1183
defense witness relating to the subject matter of
the witness' testimony. In this so-called
"reverse Jencks" case, the Court unanimously
ruled that the prosecution as well as the defense
could invoke the court's inherent power to
require the production of such statements and
that no privilege prevents such disclosure once
the defense has chosen to call the individual as
a witness. The decision was later codified as
Rule 2 6.2 of the Federal Rules of Criminal
Procedure.
a. Dates: Argument: April 23, 1975:
Decided: June 23, 1975
b. Judges and court: United States Supreme Court
c. Co-counsel and principal counsel for other
parties:
The Honorable Robert H. Bork
American Enterprise Institute
1150 - 17th Street, N.W.
Washington, D.C. 20036
tel. no. 202-862-5851
Andrew L. Frey, Esq.
Mayer, Brown & Piatt
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
tel. no. 202-463-2000
Nicholas R. Allis, Esq. (argued)
(then Deputy Assistant Attorney General)
Law Offices of Nicholas R. Allis
11601 Wilshire Boulevard
Los Angeles, CA 90025
tel. no. 310-477-1200
John K. Van De Kamp, Esq.
Dewey Ballantine
333 South Hope Street
Los Angeles, CA 90071
tel. no. 213-626-3399
-46-
1184
19. Legal Activities; Describe the most significant legal
activities you have pursued, including significant
litigation which did not progress to trial or legal matters
that did not involve litigation. Describe the nature of
your participation in this question, please omit any
information protected by the attorney-client privilege
(unless the privilege has been waived.)
Among the more significant legal activities in
which I have been involved has been my work for numerous
individuals who have been the subjects or targets of white
collar criminal investigations. As noted in response to
Question 17(c)(4), in my opinion it is a significant
achievement for a white collar criminal defense lawyer to
be able to resolve matters on behalf of clients without
indictment, preferably by showing the government that the
client does not merit prosecution or would be more valuable
as a witness than as a defendant. Most of the cases I have
handled in this field did not progress to trial (at least
with respect to my own clients) because I have often been
able to persuade the government that its interests are
better served through alternative means. The role of
counsel is to develop strategy and plan a course of action,
with the goal of achieving the best legal and personal
result for the client, at a time when he or she is under
great professional, psychological and family stress. The
particular challenge and satisfaction in white collar
defense work lies in the personal nature of the work
involved.
Another very satisfying aspect of my practice has
been the appellate litigation I have done, particularly my
oral arguments involving significant issues in the U.S.
Supreme Court and in federal appellate courts. A number of
these cases are discussed in answer to the previous
question.
Some of the legal activities in which I have
taken the greatest pleasure have been in the areas of
public interest, bar activities and pro bono work. While
many of these are mentioned elsewhere in this question-
naire, I wish to note here those in which I take particular
pride.
As a member and now Chair of the District of
Columbia Judicial Nomination Commission, which recommends
to the President three persons for each vacancy on the
Superior Court of the District of Columbia and on the
District of Columbia Court of Appeals, I have worked to
recruit and recommend highly qualified lawyers of diverse
backgrounds in terms of race, ethnicity, gender and types
of background, experience and practice areas. I believe
-47-
1185
the work of the Commission has made the Superior Court and
the D.C. Court of Appeals among the very best state level
trial and appellate courts in the country.
I also take great satisfaction from my work as a
founder and Board member of the Washington Legal Clinic for
the Homeless, which provides volunteer legal services and
advice to individual homeless persons in soup kitchens and
shelters in the District of Columbia. When created, there
were only a handful of bar-sponsored or bar-related
homeless programs throughout the country, and there was
great diversity among them as to purpose, means and
quality. Since then, our program has, because of its
success, been replicated in dozens of cities. I have been
equally proud of my work as Chair of the American Bar
Association Commission on Homelessness and Poverty in
furthering the involvement of lawyers nationwide in
undertaking personal and organized efforts to help the
homeless.
As Chair of the Civil Justice Reform Act Advisory
Group for the United States District Court for the District
of Columbia, I have worked with an extremely talented group
of 2 5 lawyers from diverse areas of practice to study the
court's practices and procedures in a systematic way and to
make recommendations for improvements to the system and to
reduce the expense and delay inherent in civil litigation.
Many of our recommendations were adopted by the Court in
its plan.
-48-
1186
PAUL L. FRIEDMAN
n. FINANCIAL DATA AND
CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated
receipts from deferred income arrangements, stock,
options, uncompleted contracts and other future
benefits which you expect to derive from previous
business relationships, professional services, firm
memberships, former employers, clients, or customers.
Please describe the arrangements you have made to be
compensated in the future for any financial or
business interest.
White & Case Savings and Investment Plan, a
profit-sharing plan with a Section 401 (k) component to
which I have voluntarily contributed, from which I
will be entitled to receive my account balance upon
reaching age 59-1/2.
White & Case Retirement Income Pension Plan for
Eligible Partners (a qualified defined benefit plan)
(to which both the firm and I have contributed) , from
which I will be entitled to be paid a fixed sum
annually upon reaching age 65.
My White & Case partnership capital contribution
account (based on contributions I have already made) ,
which will be paid out in equal installments on a
monthly basis over six years once I leave the firm.
I also am (and will continue to be) a general
partner with other White & Case partners and former
partners (and, in some cases, their spouses) in
Wallpark Investors, an investment general partnership
which in turn is a limited partner in three separate
limited investment partnerships in which I have
invested through Wallpark: Advent V, Advent VI and
Media/Communications Partners II. Each is invested in
a portfolio of venture capital companies and is
managed by an outside investment adviser which is the
general partner of each.
1187
2. Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the
categories of litigation and financial arrangements
that are likely to present potential conf licts-of-
interest during your initial service in the position
to which you have been nominated.
I will not participate in any cases where a party
is represented by White & Case. I will recuse myself
from any and all cases where I have a potential
personal or pecuniary conflict of interest, or where
there is an appearance of one, including cases
involving clients I have represented on a regular
basis, companies in which I am aware my wife or I have
substantial stock holdings, partnerships in which we
have a financial or personal interest, or companies
that invest or manage our personal funds. I will also
recuse myself from any litigation directly involving
my wife's employer or a specific previous employer of
hers, INSLAW. I intend to follow the guidelines set
forth in the Code of Judicial Conduct and in any
Ethics Opinions of which I am aware that govern
conflicts of interest.
3. Do you have any plans, commitments, or agreements to
pursue outside employment, with or without
compensation, during your service with the court? If
so, explain.
I have no such plans.
List sources and amounts of all income received during
the calendar year preceding your nomination and for
the current calendar year, including all salaries,
fees, dividends, interest, gifts, rents, royalties,
patents, honoraria, and other items exceeding $500 or
more (If you prefer to do so, copies of the financial
disclosure report, required by the Ethics in
Government Act of 1978, may be substituted here.)
I am attaching a copy of my Financial Disclosure
Report, required under the Ethics Reform Act of 1989,
dated March 28, 1994.
-2-
1188
5. Please complete the attached financial net worth
statement in detail (Add schedules as called for) .
I am attaching a financial net worth statement
(as of February 28, 1994), with schedules, and
independent accountant's report.
6. Have you ever held a position or played a role in a
political campaign? If so, please identify the
particulars of the campaign, including the candidate,
dates of the campaign, your title and
responsibilities.
In 1990 and again in 1992, I was involved in
Eleanor Holmes Norton's campaign to become the
District of Columbia's Delegate to Congress. In 1990,
I was listed as one of the co-chairs of her campaign
and in 1992 I was one of the sponsors of a fundraiser
for her among lawyers.
In 1990, I was also involved in John Ray's
campaign for Mayor of the District of Columbia, and my
wife and I hosted a small cocktail reception for him
in our home. I also hosted a small reception for him
at the offices of my firm.
-3-
1189
Ji-M
n*
FINANCIAL DISCLOSURE REPORT
NOMINATION
1. Hrten Raporting (Lut mm, ftrst. atddlt tfiltUI)
rricdaan, Paul L.
2. Court or Org«ntzitton
United states District Court
S. Report Typo (chccli ipproprlatt typi)
JL Neatiutlen. Date 03/;;/94
Initial Annual Final
3. Date of Rtport
03/28/94
4. Tttlt (Arttelo III
'wl?^o?Hi!'i^i**^*^*^'^'^'^^"**
Nominee, V. S. District Cotirt
6. Raportlng Period
01/01/93 - OZ/Zt/94
7. Omtmn or Off lea Addm*
1747 Pennsylvania Avenue, N.H.
Suite 500
Washington, D.C. 20006
(. On the bull of the Inforntloi) contained In thli Report i
any wfipeation}. pertaining thereto, .it It, In ny opinio
In coBliancc eith appTlcablc Ian and regulttloni.
Revle«1na Officer .
Date .
IMPORTANT NOroS: Tte JBflmrtifim Rccompmying thit farm mna be tollcwred. Complete all pam,
.k«. i;ii^«l.»MOIJPW»«r»-».rti «iwfL» »h>»>yr«ilt«» n/i T>|w»T.KI> jtitnT^tlinn Sign OO Ust page.
L POSITIONS. (RepoftmgiiMfivUlnalaoly, see pp. 7-8 of Instructions.)
POSITION NAME OF ORGANIZATION/ENTITY
■OBI (Ro raporteble potlttent)
n
See attached rider A.
n. AGREEMENTS. (Repoftiag individual ooly.iee pp. 8-9 of Instnictions.)
DATE PARTIES AND TERMS
n
(Ro reportable agraMents)
See attached rider B.
m. NON-INVESTMENT INCX>ME. (Reporting individual and spouse; see pp. 9-U of Instructions.)
DATE SOURCE AND TYPE
■GHZ (Ro reportable non-lmettaant Incoae)
1992
1993
02/28/94
1222
1993
Conoensation as
Partner
in law
firm -
White
t
Case
CoBoensation as
Partner
in law
firm -
White
f
Case
CoBoensation as
Partner
in law
firm -
White
t
Case
fSl CoBoensation from Kellev.
Drve i
Warren
fS) Compensation fron peabody
k Brown
.GROSS INCOMI
()ruuri, nui iijuuu^c)
S 445493. DC
S 444452. PC
S 40194. PC
$ O.OC
$ O.OC
1190
FZnUICX&L DZSCLOBOBS SSPORT
kWK of Ptrson Reporting
Friedman, Paul L.
D«le of Reoct
03/28/94
IV. REINfBURSEMENTS and GIFTS - transporution, lodging, food, entertainment.
(Inchidet thatc to ipouie uuJ dependent children; use the parenthetical '(S)' and '(DC)' to indicate reportable
fennbunementx and gifts received by spouse and dependent children, respectively. Sec pp. 12- 14 of Instniaions.)
SOORCE DESCRIPTION
n
■OHB (No wcti raportable rclitorta
glfti)
EXEMPT
V. OTHER GIFTS. (Includes those to spouse and dependent children; use the parentheticals '(S)' and '(DC)' to
^nrfirjtf other gifts received by spouse and dependent children, respectively. See pp. 13-16 of Instructions.)
n
SOURCE
■OlIB (No luch reportable gifts)
DESCRIPTION
EXEMPT
VALtJE
0.00
VI.
D
UABILITIES. (Includes those of spouse and dependent children; indicate where applicable, person responsibke
for liability by using the pr"-"'*'"''-'! '(S)' for separate liability of the spouse, '(J)' for joint liability of reporting
individual and spouse, and *(DC)' for liability of a dependent child See pp. 16-17 of Instructions.)
CREDITOR DESCRIPTION VAUJE CODE*
>OHB (No rvportable lubllltln)
Wallpark Investors
Remaining Capital Contribution Due
c
• VALUE aaa:
izmW-lm.^o i'.iW^i-.HH
:»l?4»?UJl?B68?8oo
N • tlOO.OOl to SZSO.OOO
1191
FINANCIAL DISCLOSURE REPORT
Name of Pcnoo Reporung
Friednnan. Paul L
Due of Report
03/28/&4
Vn. INVESTMENTS and TRUSTS — income, value, transactions (Includes thoce of tpousc and
dqxnoU children; Sec pp. 18-26 of jnHnirtiopt )
la&Meabtie apiiikaUe, oner oT
tte •■« by aiag Ibe BBOitheiicil
iog iadiviSAl and tpoic'XS) tST
»epanitawoenbtpoftpoaK.\UCy
km owaaihipb} lirjrnAml alU.
T)aoc u *pC)' afixr —db mmt
oempt Cora prior dadoure-
B. .
4unnf
npaunt
fetiod
c
OnarahB
ttattet
Tt—artlnwdaiiHrepecii^ period
AaLl
Cbde
fA-m
Type
St
KUor
(J)
Value:
Cbde
fJ-P)
Value
UoboO
Code
fo-wi
ndcBp
IJoal
u no< aeam rnxn aacKirare
P)
Daa
Moolh
Valw2
Code
(I-P)
Oaial
Cbde
<A-H1
P)
Ideaii»o<
Cifprivw
tramactaa)
NONE (Noreporubk
mcome. iseu, 6r
Listed Common Stocks:
1 Amer Software A J
None
J
T
Exempt
2 Anthem Electronics
None
J
T
Exempt
3 Digital Equipment J
None
J
T
Exempt
4 Gtech Holdings Corp J
None
J
T
Exempt
3 Scios Nova J
None
J
T
Exempt
« Varity Corp New J
None
J
T
Exempt
7 WMS Ind J
None
J
T
Exempt
8 Abbott Laboratories
A
Dividend
J
T
Exempt
9 Abbott Labs J
A
Dividend
J
T
Exempt
10 Air Express IntI
A
Dividend
J
T
Exempt
11 American Precision Ind DelaJ
A
Dividend
J
T
Exempt
12 Amoco Corp J
A
Dividend
J
T
Exempt
u AMP Inc PA J
A
Dividend
J
T
Exempt
14 Arvin Industries
A
Dividend
J
T
Exempt
u Arvin Industries Inc. J
A
Dividend
J
T
Exempt
16 AT&T J
A
Dividend
J
T
Exempt
17 Baker Hughes Inc J
A
Dividend
J
T
Exempt
18 Baxter Intiinc J
A
Dividend
J
T
Exempt
19 Bear Stems Co J
A
Dividend
J
T
Exempt
2D Bell Atlantic Corp J
A
Dividend
J
T
Exempt
21 Bergen Brur«wig CI
A
Dividend
J
T
Exempt
1192
FINANCIAL DISCLOSURE REPORT
NuK of Fcnoa Rcponioi
Friedman, Paul L
Ducctf Rcpon
03/28/94
vn. INVESTMENTS and TRUSTS — income, vahie, transactions (Inchuies thoce of ipoatc and
depcneot childreii; Sec pp. 18-26 of umructioiu.)
A
VmmiioaatAmm
(iKlBi^ iratf Aaat)
'''■^' lidtaMwhtrr tfiikittk.amoaet
Theeu TPC)- BMtreacbaact
ocBBi (bnn prior daOamc
B.
pcnoa
c
Mtmiot
15S«
D.
•nw«li<Mlhiihtii|<»1it|icrinJ
AaLl
Qodt
fA-H)
St
itaier
tall
(1)
%Uae2
Qide
0-r)
V>Im
Oak
<o-w»
U aol aemX ban dadoniR
DMT
Mcalk
VthKl
Code
P-P)
m
GaiBl
Cntc
(A-H
(tfprinit
mauaioa)
NONE (Noreporuble
mcome, useu, or
Listed Common Stocks:
22 Boeing Go
A
Dividend
J
T
Exempt
Z3 Boeing Co. J
A
Dividend
J
T
Exempt
24 Boise Cascade
A
Dividend
J
T
Exempt
25 Borden Inc. J
A
Dividend
J
T
Exempt
26 Bristol Myers Squibb Co J
A
Dividend
J
T
Exempt
27 British Petroleum PLC ADR J
A
Dividend
J
T
Exempt
28 Circuit City Stores
A
Dividend
J
T
Exempt
2» Circuit City Stores J
A
Dividend
J
T
Exempt
30 Computer Associates
A
Dividend
J
T
Exempt
31 Coming Inc J
A
Dividend
J
T
Exempt
32 Crane Co J
A
Dividend
J
T
Exempt
33 Cubic Corp J
A
Dividend
J
T
Exempt
34 Delux Corp J
A
Dividend
J
T
Exempt
33 Dreyfus Corp J
A
Dividend
J
T
Exempt
36 Duracell IntI J
A
Dividend
J
T
Exempt
37 Eastman Kodak Co J
A
Dividend
J
T
Exempt
38 Edwards AG Incorporated J
A
Dividend
J
T
Exempt
3» Entergy Corp New J
A
Dividend
J
T
Exempt
40 Exxon Corp J
A
Dividend
J
T
Exempt
41 First Brands
A
Dividend
J
T
Exempt
42 Fleet Fifuiacial Group J
A
Dividend
J
T
Exempt
1193
FINANCIAL DISCLOSURE REPORT
Naok of Pcnoa Reponuf
Friedman, Paul L
DaicoffUpon
03/28/94
Vn. INVESTMENTS and TRUSTS — income, vahie, transactions (Includes tboce of tpotat ud
dq>eDeol childrcii; See pp. 18-26 of mnructiaoL)
A
DtntakaefAwa
(iMlad^lnaMMa)
l«fieHe»kacapaSariik.<Merar
ifee •■« by aa* (be panalbeiicil
l^iadMdiiitl and •palK.ltS) (or
icpame owDcnbjp tnr ipovae, YDQ*
riKaia *(X)' ■ftcTMcfeaiiel
csempi <0fiD prior dkclaave.
■B.
bCMK
c
tJnmnlm
D
4^
period
1SSS*
w
AOLI
Code
fA-H)
not or
taO
w ■
Vdwl
Oode
p-r)
ValiK
Methods
Code
(O-Wl
aoiBr,
U nol aemsl Irom ladonire
P>
Date
Moalk
VdaeJ
Code
P-P)
w
Qdal
Cbde
(A-H)
Ideality of
bajnMtar
NONE (NorepoTUble
mcome, assets, £r
tnnsactioiul
Listed Common Stocks:
43 Ford Motor Co J
A
Dividend
J
T
Exempt
44 Huffy Corp J
A
Dividend
J
T
Exempt
45 Huffy Corp
A
Dividend
J
T
Exempt
46 Humana Inc J
A
Dividend
J
T
Exempt
47 IntI Business Machines CorpJ
A
Dividend
J
T
Exempt
4s JP Morgan J
A
Dividend
J
T
Exempt
49 K Mart Corp J
A
Dividend
J
T
Exempt
so Limited inc J
A
Dividend
J
T
Exempt
31 Liz Claibome J
A
Dividend
J
T
Exempt
52 Loral Corp J
A
Dividend
J
T
Exempt
53 Mark IVIndInc J
A
Dividend
J
T
Exempt
54 Maytag J
A
Dividend
J
T
Exempt
55 Medicine Shoppe Int J
A
Dividend
J
T
Exempt
M Monsanto J
A
Dividend
J
T
Exempt
57 National Data Corp J
A
Dividend
J
T
Exempt
5s National Health Labs J
A
Dividend
J
T
Exempt
s» Nations Bank J
A
Dividend
J
T
Exempt
CO Nike Corp
A
Dividend
J
T
Exempt
«i Nike Inc. B J
A
Dividend
J
T
Exempt
62 NY Times CL A Common J
A
Dividend
J
T
Exempt
63 Panhandle Eastern Corp J
A
Dividend
J
T
Exempt
1194
FINANOAL DISCLOSURE REPORT
NaiDC of Pcnoo fUportuf
Friedman, Paul L
Due of kcpon
i 03/28/94
Vn. INVESTMENTS and TRUSTS - - income, vahie, transactions (Includes tbocc of ipousc ud
dcpenent children; Sec pp. 18-26 of mstnicboni.)
Dacripaoo ef Aaea
(iKjadiag ln<l MKS)
ladfcua «hm ippliabk, oner e(
Ike MKt by an* ttae pumhetied
litmilhSi::^ ua ipouK. \S) far
llHeu \X)' •fttrochaact
CKBPt fofin prior dackxore.
B.
beow
c
Oraantac
aicndot
o.
TmmakmitrimtTtponmfjiaioi
AaLl
Cote
(A-m
teal or
(1)
V<1ik2
Code
fJ-F)
Vate
MetfeodS
Cbde
<0-W»
ndanp
U ool aempt btai diKiourc
P)
Due
Moolfe
Dnjr
Value}
Code
(J-P)
I*)
Gaial
CBdc
(a-h;
{')
Idcsdiyof
bayahcOa
(Vprnm
tnmaaxm'i
NONE (Noreporubie
mcome, asseu, or
tnniaciiont)
Listed Common Stocks:
M PHH Corp J
A i Dividend
J
T
Exempt
63 Philip Morris Co Irx: J
A
Dividend
J
T
Exempt
«6 Philip Morris Co Inc J
A Dividend
J
T
Exempt
67 Polaroid Corp
A
Dividend
J
T
Exempt
I
u Praxair Irx: J
A
Dividend
J
T
Exempt
69 Quaker State CP J
A Dividend
J
T
Exempt
TO Raymond JMS Fine!
A Dividend
J
T
Exempt
71 Sprint Corp J
A
Dividend
J
T
Exempt
n Stanmore Inc
A Dividend
J
T
Exempt
73 Stride Rite Corp J A Dividend
J
T
Exempt
74 Super Food Service J
A Dividend
J
T
Exempt
73 Syntex Corp J
A Dividend
J
T
Exempt
76 United Technologies Corp J
A
Dividend
J
T
Exempt
77 W R Grace & Co J
A 1 Dividend
J
T
Exempt
78 Walt Disney Co J
A
Dividend
J
T
Exempt
79 Westinghouse Electric J
A
Dividend
J
T
Exempt
w Westinghouse Electric J
A
Dividend
J
T
Exempt
(1 Apple Computer Inc. J
A
Cap Gain
Exempt
S2AT&T J
A
Cap Gain
Exempt
83AT&T J
A
Cap Gain
Exempt
M Bear Strens Inc J
A
Cap Gain
Exempt
1195
nNANOAL DISCLOSURE REPORT
Nmc o( Pcim Rcporu^
Friedman. Paul L
Oucof Repon
03/28/94
Vll. IN VIfi>T^lB^^^S Ud Ik US'I'S - - income, value, transaCtlOIlS (Includes tliace of tptnac ud
depoeat children; Sec pp. 18-26 of maructuot.)
A. _
•ay iDT tahlainniUportkr npen-
thosM IpC)' «Clcra*c*aM
•Kaec Coiv prior dadoniR.
c
Onstyv
Kdidef
D.
•n—r lliMltiiiiiHii|»li^|»iii»1
Qarte
fA-m
St
mnsr
iu.1
(J)
VataeZ
Qxte
(J-F)
Vatae
Cbde
ro-w»
5'
U Dd eteaM Iraai aMmn
DMT
ValiKZ
Code
a«ial
Cbdc
(A-HJ
boycokelkr
NONE (No reportable
mcome, aseu, fir
Listed Common Stocks:
S3 Bear Strens Inc
J
A
Cap Gain
Exempt
•6 Boston Tech Inc
J
A
Cap Gain
Exempt
n Computer Associates
C
Cap Gain
Exempt
n Crown Cork and Seal
J
A
Cap Gain
Exempt
(9 Duracell inti Inc
J
A
Cap Gain
Exempt
K Duracell IntI Inc
J
A
Cap Gain
Exempt
•1 Eastman Kodak
J
A
Cap Gain
Exempt
« Ford Motor Co
J
A
Cap Gain
Exempt
«3 Galen Health Care Inc
J
A
Cap Gain
Exempt
94 Gap Inc
J
A
Cap Gain
Exempt
K JP Morgan
J
B
Cap Gain
Exempt
«6MarklVlndlnc
J
A
Cap Gain
Exempt
*7 Mark IV Ind Inc
J
A
Cap Gain
Exempt
« Marie IV Ind Inc
J
A
Cap Gain
Exempt
•9 MCI Communications
J
B
Cap Gain
Exempt
too Medco Containment Svc
J
A
Cap Gain
Exempt
101 Nationsbank Corp
J
A
Cap Gain
Exempt
102 Panhandle Eastem Corp
J
A
Cap Gain
Exempt
103 Panhandle Eastem Corp
J
A
Cap Gain
Exempt
iM Paramount Commun.
J
B
Cap Gain
Exempt
tos Paychex Inc
J
A
Cap Gain
Exempt
1196
FINANCIAL DISCLOSURE REPORT
Naac of Knoa lUpaniaf
Friedman, Paul L
Uuco/Rcpon
03/28/94
Vn. INVECTMENTS msd TRUSTS — income, vahie, traosactioiis (includes those of ipoiuc uid
dqieaent childreii: See pp. 18-26 of iastnictions.)
DtmaipiaaclAmea
XfmdabtttmiAtMa)
ImOou nhtrc ■ptiCwIite.o— errf
the MO br arini EteputBOKikal
Hmsu VV •OerMdi mm
acmn (am criordaeloaiR.
B.
Uoame
icportmg
period
c
Oraavilae
tiodet
o.
Timer til «iiil«iliHH|mliiHliiiii Hi
a;
code
fA-m
itBter
(1)
Vdad
CMC
fJ-F)
VUm
lictbodJ
Cbde
<o-vn
■eijet.
ndemfi
!l ad ocmM mm oaeumn
P)
t>uc
Mooib
m
Vehie2
Coic
(J-P)
QelBl
CBde
(A-H]
Uctfhraf
(Ifprtnee
NONE (No reportable
meome, asseu, or
innxacuoiul
Listed Common Stocks:
106 Pepsico Inc J
A
Cap Gain
j Exempt
107 Penigo CO J
B
Cap Gain
Exempt
108 Philip Morris Co J
A
Cap Gain
Exempt
in Pyxis Corp J
A
Cap Gain
Exempt
no Tandy Corp J
A
Cap Gain
Exempt
ill Telefonos DE MX J
A
Cap Gain
Exempt
112 Telefonos DE MX J
A
Cap Gain
Exempt
lu Texas Instalments J
A
Cap Gain
Exempt
114 Travelers Corp J
A
Cap Gain
Exempt
115 Union Cartside Corp J
A
Cap Gain
Exempt
116 Wan Disney Corp J
C
Cap Gain
Exempt
117 Wendys IntI J
A
Cap Gain
Exempt
118 Wendys IntI J
A
Cap Gain
Exempt
11* Wheelabrator Tech J
A
Cap Gain
Exempt
uo York IntI CP J
A
Cap Gain
Exempt
1197
FINANCIAL DISCLOSURE REPORT
Naae of Fanoo lUpaniiif
Friedman. Paul L
Ducofkcpon
03/28/94
Vn. INVESTMENTS and TRUSTS — income, value, transactions (Indudesthoce ofqxHueuid
dq>eaait chUdren; Sec pp. 18-26 otmaniftioot)
c
OraMolM
imdat
D.
AU.I
Oode
mtw
(1)
V«lne2
ODde
m
VdW
Mcdwd)
iroAioei
Pmrm OHCiotiifc
P)
Due
liouk
VdM3
Ctode
CBdB
(a-h;
Unlhyor
bncrMlcT
NONE (Noreportabk
mcome, usets, 6r
tmuicaanil
Listed Investment Funds:
1 Columbia Futures
None
J
T
Exempt
2 Comefstone Fund 03
None
J
T
Exempt
3 Cornerstone Fund 04
None
K
T
Exempt
4 Dean Witter Capital Growth
None
J
T
Exempt
s Dean Witter Dividend Growtti
None
K
T
Exempt
t Dean Witter Pacific Growth
None
K
T
Exempt
7 Diversified Fund 02
None
J
T
Exempt
( Diversified Fund 03
None
J
T
Exempt
* Global PP Fund 01
None
K
T
Exempt
10 IntI Access Fund
None
J
T
Exempt
11 IntI Fund Access Fund
None
J
T
Exempt
u PRN Secured Fund 01
None
K
T
Exempt
13 World Currency Fund
None
J
T
Exempt
14 Cornerstone Fund 04 J
None
J
T
Exempt
u Dean Wrtter Capital Growth J
A
Dividends
J
T
Exempt
u Dean Witter Dividend Growth J
A
Dividends
J
T
Exempt
IT Dean Witter European Growth J
A
Dividends
K
T
Exempt
u Dean Wrtter Pacific Growth J
A
Dividends
K
T
Exempt
» Diversified Fund 03 J
None
K
T
Exempt
» Latin Arrterican Growth Fund J
None
J
T
Exempt
21 Pincipal Secured Fund 01 J
None
K
T
Exempt
1198
FINANCIAL DISCLOSURE REPORT
Name of Penco lUpcruig
Friedman, Paul L
Dau of kcpor.
03/28/94
. . . .
Vn. INVESTMENTS and 1 kUSTS - - income, vahie, transactions (include* uiow oi ipouje ud
depcnenl children; See pp. 18-26 of butnictiau.)
A.
DtmaMaxUAmtIt
(iKtadiattnaAMB)
laaaMvbae •niSaMe. oner «r
Ike MKt by aia« the puotheiied
TlMe*s yXf tttcrfduta
acmM Corm prior doclouuc
B.
c
D.
during
Bponaf
period
aicodof
.^ontaj
jienod
TteonctiQBi SBTiBfTcpofittf period
(1)
AOLl
Oode
T>pc
renter
i»L>
(1)
VtlK2
Code
0-^
Vdue
MeUiod3
Ctxk
(0-W>
buy.ien,
■ojer.
uoe)
1 1UM aempl mm oocionirc
Due
Uoatfc
(?)
VtlueJ
Code
(J-P)
Gmtnl
Oxle
(A-HJ
(»
Ideuilyol
bmerAcllo
(iphnie
maucixx)
NONE (Norcporuble
mcome, assets, 6r
liansaciionsl
Listed Investment Funds:
22 Transamerica Tax Free Bond F J
B
Dividends
K
T
Exempt
23 Columbia Futures S
None
J
T
Exempt
24 Cornerstone Fund 03 S
None
J
T
Exempt
23 Cornerstone Fund 04 S
None
K
T
Exempt
It Dean Witter Capital Growth S
None
J
T
Exempt
27 Diversified Fund 02 S
None
J
T
28 Diversified Fund 03 S
None
J
T
Exempt
29 IntI Access Fund S
None
J
T
Exempt
30 PRN Secured Fund 01 S
None
J
T
Exempt
31 World Currency Fund S
None
J
T
Exempt
32
33
34
35
36
37
3»
3»
40
41
J
1199
FINANCIAL DISCLOSURE REPORT
Name of Penoo Re porting
Friedman, Paul L
Due c( keport
03/28/94
Vn. INVESTMENTS and TRUSTS - - income, value, transactions (Includes those of q>ousc and
depcnenl childrea; See pp. 18-Z6of inxtructioiu.)
Ike MKI by ad^lbepuanbetia]
Vr tor iotaoSenlufof Ihe ttpott-
Fbeeia 7X)' tfKreMliMH
oosn tonD Bcior dadaune.
&
laone
darmg
fKHOa
c
Oraanlae
uaict
reponing
period
D.
jrtnm*tiOBtfluiBHtcponBHpciiod
(1)
AmLl
Oxir
Type
leator
(1)
VilueZ
Code
fJ-P)
Value
MeUxxD
Cbde
ra-w>
buy.Kfl,
BetfCTr
latonp
11 sol eicmpi iroiD aucioiuiT
P)
Date
Moolh
ValaeZ
Code
(J-P)
(*)
Gain]
Code
(A-H)
(5)
IdeDliiyoT
buyer teOer
(ifpnvu.
Inataetion^
NONE (No reportable
mcome, tseu, or
truuactioiul
Money Mar1<et Accounts:
I Dean Witter Liquid Asset Fund
None
J
T
Exempt
: Dean Witter Liquid Asset IRA
A
Dividend
J
T
Exempt
3 Dean Witter Liquid Asset J
A
Dividend
J
T
Exempt
4 Dean Witter Liquid Asset Fund J
A
Dividend
J
T
Exempt
i Dean Witter US Govt Money M J
A
Dividend
K
T
Exempt
6 Merrill Lynch Floating Fund J
A
Dividend
K
T
Exempt
7 Merrill Lynch Prime Fund J
A
Dividend
J
Exempt
8 T. Rowe Price Tax Exempt FunO
C
Interest
N
T
Exempt
9 Dean Witter Liquid Asset S
J
T
Exempt
10
11 Tax Exepmt Funds:
12 Nuveen Tax Exempt Unit Trust J
B
Interest
J
T
Exempt
u
14
15
It
17
u
19
30
21
1200
FINANCIAL DISCLOSURE REPORT
Nuac of Poxia Reporuat
Friedman, Paul L
DucofRcpon
03/28/94
Vn. INVESTMENTS and TRUSTS — income, vahie, transactions (indudet ihoic of tpoute and
dcpcacot childreo; Sec pp. 18-26 of mstractiooL)
Dma<fti*ct*mm
Qirliil^w—^aea)
Thecal W ■AoMdiaMt
aaux tons Bcior dlKkaaw.
laooM
penod
C
OrmviIm
•lead of
D.
•niaiX'lliidiirtiHrninnaupgiDd
(I)
AmLi
Code
P)
raator
ValueZ
Cndr
0-r)
VakH
Cbde
IVOtlDp
lioal
I aoi tuam man oaaonre
Da*
Uaolk
Vatal
Code
(I-F)
GalBl
Code
(A-H]
Idcuiiyuf
hmyahaa
inaaactxial
NONE (NoreporuWe
mcomc. asseu, 6r
Iruuicuoos)
Investment Partnerships:
1 Wallpark Investment Partnerships
C
Cap Gains
M
W
Exempt
2 Cohoes Redevelopment Assoc
None
K
W
Exempt
3 DW Realty Income 1 LP
A
Interest
J
T
Exempt
4 American Leasing LP J
None
J
W Exempt
J Ares-Serono R&D J
A
Interest
J
W
Exempt
« Carlyle Real Estate LP J
A
Cap Gains
J
W
Exempt
7 Crystal Hill Associates J
None
J
W
Exempt
B Hybritech Clinical Partners J
B
Interest
K
W ! Exempt
9 Oxford Tax Exempt Fund J
A
Interest
J
T
Exempt
10 Spartansburg- Oxford J
None
J
W
Exempt
11 Winthrop Financial Associates J
None
J
W
Exempt
12 Zond Wind Systems J
B
Interest
J
u
Exempt
13 Cohoes Redevelopment AssocS
None
K
W 1 Exempt
14
U
16 Other Partrwships:
17 Capital contnbution in tfie law
18 firm of White & Case
L
Retiun of Ca(
0
U
Exempt
1*
JO
21
I
1201
rmOICXAL DZ8CI08UBZ SZPOST
MuH of Parson Roporttng
Friedman, Paul L.
Date of Report
03/28/94
Vm. ADDITIONAL INFORMATION or EXPLANATIONS. (Indicate put of Report)
IZI. aOV-iaVESTMEHT ZKCOKB (Cont'd.)
DATE SOURCE AND TYPE
02/28/9*
(S) Compensation from Peabodv t Brovm
GROSS INCOME
$ 0.00
TUaatCUd, DZ8CL0B0B2 KEFOST
1202
luac of Person Rsporttng
Friedman, Paul L.
D«tc 0l Report
03/28/94
DL CERTinCATION.
In coiipllance with the provisions of 28 U.S.C. 455 and of Advisory Opinion
No. 57 of the Advisory Comnittee on Judicial Activities, and to the best of ny
)cnowledge at the tinfe after reasonable inquiry, I did not perform any
adjudicatory function in any litigation during the period covered by this report
in which I, my spouse, or my minor or dependent children had a financial
interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I certify that all the information given above (including information
pertaining to my spouse and minor or dependent children, if any) is accurate,
true, and complete to the best of my knowledge and belief, and that any
information not reported was withheld because it met applicable statutory
provisions permitti.ng non-disclosure.
I further certify that earned income from outside employment and honoraria
and the acceptance of gifts which have been reported are in compliance with the
provisions of 5 U.S.C. A. app. 7, 501 et. seq. , 5 U.S.C. 7353 and Judicial
Conference regulations.
Signature . 0.<..~<^~~ ^ /y. -^ ^ - Date ^.-(it-- ■> i / ^ *> y
NOTE: AKY INDIVIDUAL vmo KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE
THIS REPORT MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C. A. APP. 6,
104, AND 18 U.S.C. 1001.)
FILING INSTRUCTIONS:
Mail signed original and 3 additional copies to:
Committee on Financial Disclosure
Administrative Office of the
United States Courts
Washington, D.C. 20544
1203
FINANCIAL DISCLOSURE REPORT
Friedman, Paul L,
3/28/94
EIDE&j^
Partner
White & Case
Director
Stuart Stiller Memorial Foundation
Director
Frederick B. Abramson Memorial
Foundation
Director
American Judicature Society
Trustee
David M. Schwarz Irrevocable Trust
Co-Trustee
The Potomac Trust
Personal Representative
(Executor)
Estate of Frederick B. Abramson
Executor
Estate of Cecil A. Friedman
General Partner
Wallpark Investors, an investment general
parmership made up of some partners and
former parmers of White & Case.
Wallpark in turn is a limited Partner in
three separate limited investment
parmerships in which I have invested
through Wallpark.
1204
FINANCIAL DISCLOSURE REPORT
Friedman, Paul L. 3/28/94
RIDER B
Upon n!y appointment to the United States District Court for the District of
Columbia, I will withdraw from my partnership in the law firm of White & Case. I have and
Svill have no agreements with respect to future employment or for a leave of absence during
government service.
^th respect to continuation of payments by White & Case and continuing
participation in employee welfare or benefit plans, I report the following:
1. Under the White & Case partnership agreement to which I became a party on
October 1, 1979, I am entitled to be paid in equal installments on a monthly basis over six
years what is due me from n^ capital contribution accoimt, based on contributions I have
already made.
2. Under the White & Case Retirement Income Pension Plan for Eligible Parmeis,
a qualified defined benefit plan, effective January 1. 1989, 1 will be entitled to be paid a
fixed sum annually upon reaching the age of 6S.
3. Under the White & Case Savings & Investment Plan, a profit-sharing plan with
a Section 401(k) component, which became effective on January 1, 1983, 1 will be entitled
to receive my account balance upon reaching age S9Vi
4. I also am, and will continue to be, a general parmer with other White & Case
partners and former parmers (and, in some cases, their spouses) in Wallpark Investors, an
investment general partnership which in turn is a limited partner in three separate limited
investment parmerships in which I have invested through WaUpark: Advent V, Advent VI
and Media Communications IL Each is invested in a portfolio of venture a^ital conq)anies
and is managed by an outside investment adviser which is the general partner of each.
1205
Financial Net Worth Statement
And
Independent Accountants Report
Paul L Friedman and EGzabeth A. Friedman
February 28, 1994
1206
Reznick Fedder & Silverman
Cerlilied Public Accountants • Business Consuiiar.'.s
A Prolessional Corporation
4520 East-West Highway .Suite 300. Belhesda. MD 20814-3319 . (301) 652-9 IOC . Fax (301) 652-1848
Independent Accountants' Report
Paul L Friedman and Elizabeth A. Friedman
We have compiled the accompanying financial net worth statement of Paul L
Friedman and Elizabeth A. Friedman as of February 28, 1994, in accordance with
Statements on Standards for Accounting and Review Services issued by the American
Institute of Certified Public Accountants. The statement of financial condition is intended
to present the assets of Paul L. Friedman and Elizabeth A. Friedman at estimated current
values and their liabilities at estimated current amounts.
A compilation is limited to presenting in the form of financial statements information
that is the representation of the individuals whose financial statements are presented. We
have not audited or reviewed the accompanying financial net worth statement and
sources of income and, accordingly, do not express an opinion or any other form of
assurance on it. However, we did become aware of a departure from generally accepted
accounting principles that is described in the following paragraph.
Generally accepted accounting principles require that personal financial statements
include a provision for estimated income taxes on the differences between the estimated
cun-ent values of assets and the estimated current amounts of liabilities and their tax
bases. The accompanying financial net worth statement and sources of income does not
include such a provision, and the effect of this departure from generally accepted
accounting principles has not been determined.
f2*v-jJt, -hOA^ **^ ^^^^"^ — .
Bethesda. t^aryland
February 28, 1994
JI7 Eaii Redwood 5tr«*i • Sum* I»00 21S South Tryon Siraai . Suil» 1 ISO
talllmor*. Maryland 3I303-33I6 . (410) 727-4340 Chorlolw. Norm Carolina 2«3ai-*IO0 . (704) M2-«tOO
1207
Net Worth Financial Statement
for Paul L and Elizabeth A. Friedman
as of Febmary 28, 1 994
ASSETS
Cash on Hand - Bank Accounts
Money Market Accounts
U.S. Government Securities
Listed Securities (B)
Listed Funds
Unlisted Securities (C)
Retirements and Pension Plans (D)
Partnerships (E)
Accounts and Notes Receivable
Real Estate Owned (F)
Real Estate Mortgages Receivable (G)
Auto and Personal Property
Cash Value of Life Insurance (H)
Other Assets (I)
Total Assets
Total Assets
UABIUTIES
Notes Payable - Secured
$0
Notes Payable - Unsecured
$0
Notes Payable to Relatives
$0
Notes Payable to Others
$0
Accounts and Bills Due
$2,000
Unpaid Income Tax
$0
Other Unpaid tax and Interest
$0
Real Estate Mortgages Payable (J)
$46,7t6
Other Mortgages and Liens
$0
Other Liabilities (K)
$14,250
$4,834
$301,818
$0
$350,543
$396,510
$4,816
$748,160
$1,120,737
$0
$650,000
$135,000
$120,000
$49,441
$65,000
$3,946,859 Total Liabilities
NET WORTH
$3.946,859 Total Liabilities and Net Worth
$62,966
$3,883,8931
$3,946.859
Schedules attached.
1208
Other Items
Contingent Liabilities
Endorser, Comaker, Guarantor:
Lesises or Contracts:
Legal Claims:
Other Special Det>t:
Guarantor to pay certain nursing home costs of late father.
Estimated to be $3,150 - $35 a day for 90 days.
None
None
None
General Information
Assets pledged: None
Defendant in legal suits or actions: No
Ever filed bankmptcy: No
Detail Schedule - PsujI L and Elizabeth A. Friedman
1209
Paul L Friedman & Elizabeth A. Friedman
NOTES TO STATEMENT OF FINANCIAL CONDITION
Februaiy 28, 1994
(See accountants' compiliation report)
NOTE A - BASIS OF VALUATION AND PRESENTATION
The accompanying financial statement includes the assets and liabilities of Paul L. Friedman
& Elizabeth A Friedman. Assets are stated at their estimated current values, and liabilities
at their estimated current amounts.
NOTE B - LISTED SECURITIES
The estimated current values of marketable securities are either (a) their quoted closing
prices or (b) for securities not traded on the financial statement date, amounts that fell
within the range of quoted bid and asked price.
NOTE C - UNLISTED SECURITIES
The estimated current value of unlisted securities is based on estimated realizable value.
NOTE D - RETIREMENT AND PENSION PLANS
The estimated current value of Retirement and Pension Plans is based on estimated
realizable value.
NOTE E - INVESTMENTS IN PARTNERSHIPS
The estimated current values of investments in partnerships are determined based on
estimated realizable value.
NOTE F - REAL ESTATE OWNED
The estimated current value of the personal residence is stated at an amount which Paul L.
Friedman and Elizabeth A. Friedman considers to be realizable upon sale and is based on
coii^>arable sales in the area.
NOTE G - REAL ESTATE MORTGAGES RECEIVABLE
A 10% mortgage in the amount of S 135,000 with the balance due on the earlier of October
31, 19% or the sale of the underlying property.
1210
Paul L Friedman & Elizabeth A. Friedman
NOTES TO STATEMENT OF FINANCIAL CONDITION
Febmaiy 28, 1994
(See accountants' compiliation report)
NOTE H - CASH VALUE OF LIFE INSURANCE POUCIES
The estimated current cash values of life insurance policies are determined based on
estimated realizable value.
NOTE I - OTHER ASSETS
The estimated current values of other assets is based on the original cost
NOTE J - REAL ESTATE MORTGAGES PAYABLE
The 95% mortgage is payable in monthly installments of principal and interest of $2,822.83
through July 31, 2016. The personal residence is pledged as collateral for the mortgage.
NOTE K - OTHER UABIUTIES
The $14^0 in other liabilities represents the remaining balance on a commitment to
Wallpark Investors in Media/Communications Partners n parmership.
1211
Detail Schedule - Paul L and Elizabeth A. Friedman
Cash on Hand - Bank Accounts $4,834
NAME VALUE
Merrill Lynch Cash Balance $104
First Union (Checking) $3,000
Nations Bank (Checking) $1 ,730
Detail Schedule - Paul L and Elizabeth A. Friedman
Money Market Accounts $301 ,81 8
NAME VALUE
Dean Witter Liquid Asset $8
Dean Witter US Govt Money Market $20,009
Dean Writer Liquid Asset IRA $1 85
Merrill Lynch Ftoating Fund $1 5,030
Dean Witter Liquid Asset $9,267
Dean Witter Liquid Asset Fund $2,31 0
Dean Witter Liquid Asset Fund $9
T. Rowe Price Tax Exempt Fund $255,000
Detai! Schedule - Paul L and Elizabeth A. Friedman
U.S. Government Securities $0
NAME VALUE
1212
Detail Schedule - Paul L and Elizabeth A. Friedman
bsted Securities - (Cont) (B) $350,543
Includmg Thoae held in Individual Retirement Accounts
NAME VALUE
Scios Nova $8,832
Bergen Brunswig CI $5,925
Mark IV Ind Inc $4,844
Boeing Co $4,675
Circuit City Stores $4,750
K Mart Corp $2,660
First Brands $5,381
Nike Corp $5,175
IntI Business Machines Corp $2, 1 1 5
Raymond JMS FincI $7,369
Huffy Corp $4,813
Polaroid Corp $6,300
Amoco Corp $4,703
Edwards AG lrx:orporated $1 1 , 1 25
National Data Corp $4, 1 21
Huffy Corp $6,738
Loral Corp $11,588
W R Grace & Co $5,370
Boise Cascade $5,200
United Technologies Corp $3,400
Computer Associates $7,350
PHH Corp $7,800
Arvin Industries Inc. $7,938
Air Express IntI $5, 1 56
Circuit City Stores $6,650
Stanmore Inc $7, 1 50
Sprint Corp $4,810
Arvin Industries $5,556
Crane Co $1 1 ,400
American Precision Ind Dela $3,200
Praxair Inc $3,938
Westinghouse Electric $4,313
Cubic Corp $8,450
Exxon Corp $4,541
NY Times CL A Common $4, 200
Entergy Corp New $3,325
Abbott Laboratories $5,525
Eastman Kodak Co $2,580
Liz Claibome $4,575
Dreyfus Corp $4,241
Medicine Shoppe Int $9,300
1213
Listed Securities - (Cont) (B)
Including Those held in Individual Retirement Accounts
Philip Morris Co irx: $8,400
Stride Rite Corp $10,275
Coming Inc $3,038
Quaker State CP $3,850
Britisli Petroleum PLC ADR $3,256
Philip Morris Co Inc $4,480
Bristol Myers Squibb Co $2,763
Nike Inc. B $4,140
Borden Irx;. $3,600
Westinghouse Electric $3,738
Bell Allantc Corp $4,380
Boeing Co. $9,350
Waft Disney Co $9,600
Baxter IntI Inc $4,095
Baker Hughes Inc $2,660
Super Food Sers^be $6, 1 25
Syntex Corp $3,255
AMP Inc PA $3,810
Anthem Electronics $4,781
WMS Ind $3,623
Varity Corp New $3,640
Gtech Holdings Corp $3,878
Digital Equipment $3,204
Amer Software A $3,525
1214
Detail Schedule - Paul L and Elizabeth A. Friedman
Listed Funds $396,510
Including Those held in Individual Retirement Accounts
NAME
inti Access Fund
Diversified Fund 02
Columbia Futures
PRN Secured Fund 01
Dean Witter Capital Growth
Comerstone Fund 04
Diversified Fund 03
IntI Access Fund
Comerstone Fund 03
World Currerxjy Fund
Transamerica Tax Free Bond Fund
Dean Witter Pacific Growth
Columbia Futures
Comerstone Fund 03
Diversified Fund 03
Comerstone Fund 04
Latin American Growth Fund
Diversified Fund 02
Dean Witter European Growth
Diversified Fund 03
Dean Witter Pacific Growth
Global PP Fund 01
Dean Witter Dividend Growth
IntI Fund Access Fund
Comerstone Fund 04
PRN Secured Fund 01
Dean Witter Dividend Growth
World Currency Fund
Pincipal Secured Fund 01
Dean Witter Capital Growth
Dean Witter CapitaU Growth
VALUE
$2,000
$4,338
$3,031
$5,170
$1,964
$18,636
$8,555
$12,960
$3,582
$1,478
$33,970
$43,370
$3,031
$3,582
$23,788
$20,220
$2,139
$4,338
$29,004
$5,079
$32,522
$29,665
$30,342
$2,000
$11,402
$23,685
$2,926
$1,478
$27,645
$1,755
$2,855
1215
Detail Schedule - Paul L and Elizabeth A. Friedman
Unlisted Securities (C) $4,816
NAME
Nuveen Tax Exempt Unit Tmsts
VALUE
$4,816
Detail Schedule - Paul L and Elizabeth A. Friedman
Retirements and Pension Plans (D) $748,160
NAME
Kelly Dry Defined Benefit Plan
White & Case Savings & Invest Plan
MLLIC Annuity
MLLIC Annuity
Connecticut General Annuity
White & Case Retirement Plan
VALUE
$17,864
$501,812
$67,206
$39,534
$28,744
$93,000
Detail Schedule - Paul L and Elizabeth A. Friedman
Partnerships (E)
$1,120,737
NAME
Hybritech Clinical Partners
American Leasing LP
Winthrop Financial Associates
Crystal Hill Associates
Spartar)sburg - Oxford
White & Case Capital Contrib
Ares-Serono R&D
Cohoes Redevelopment Associates
Waltpark Investment Pairtr^rships
Zond WirKJ Systems
Cohoes Redevelopment Associates
Cartyle Real Estate LP
Oxford Tax Exempt Fund
DW Realty Income 1 LP
VALUE
$25,000
$10,000
$10,000
$11,415
$1
$850,100
$2,080
$25,000
$136,500
$1
$25,000
$15,000
$8,440
$2,200
1216
Detail Schedule - Paul L and Elizabeth A. Friedman
Accdunts and Notes Receivable $0
NAME VALUE
Detail Schedule - Paul L and Elizabeth A. Friedman
Real Estate Owned (F) $650, CXX)
NAME VALUE
Primary Residence $650,000
Detail Schedule - Paul L and Elizabeth A Friedman
Real Estate Mortgages Receivable (G) $135,000
NAME VALUE
Aaron & Florence Zlchemian (Parents) $1 35,000
Detail Schedule - Paul L and Elizabeth A Friedman
Auto and Personal Property $1 20.000
NAME VALUE
Jewlery $25,000
Auto $20,000
Clothing/Fumlture/Art/Decrotives $75,000
1217
Detail Schedule - Paul L and Elizabeth A. Friedman
Cash Value of Life Insurance (H) $49,441
NAME VALUE
Whole Life Policy $35, (XX)
Connecticut Mutual Group Uni Insur $14,441
Detail Schedule - Paul L and Elizabeth A. Friedman
Other Assets (1) $65,000
NAME VALUE
Jumby Bay Club Memebership $65,000
Detail Schedule - Paul L and Elizabeth A. Friedman
Notes Payable - Secured $0
NAME VALUE
Detail Schedule - Paul L and Elizabeth A. Friedman
Notes Payable - Unsecured $0
NAME VALUE
1218
Detail Schedule - Paul L and Elizabeth A. Friedman
Notes Payable to Relatives $0
NAME VALUE
Detail Schedule - Paul L and Elizabeth A. Friedman
Notes Payable to Others $0
NAME VALUE
Detail Schedule - Paul L and Elizabeth A. Friedman
Accounts and Bills Due $2,000
NAME VALUE
Bills Due $2,000
Detail Schedule - Paul L and Elizabeth A. Friedman
Unpaid Income Tax $0
NAME VALUE
1219
Detail Schedule - Paul L and Elizabeth A. Friedman
Otner Unpaid tax and Interest $0
NAME VALUE
Detail Schedule - Paul L and Elizabeth A. Friedman
Real Estate Mortgages Payable (J) $46,71 6
NAME VALUE
Mortgage on Primary Residence $46,71 6
Detail Schedule - Paul L and Elizabeth A. Friedman
Other Mortgages and Liens $0
NAME VALUE
Detail Schedule - Paul L and Elizabeth A. Friedman
Other Liabilities (K) $14,250
NAME VALUE
Wallpark Investment Partnerships $1 4,250
1220
PAUL L. FRIEDMAN
m. GENERAL (PUBLIC)
1. An ethical consideration under Canon 2 of the American
Bar Association's Code of Professional Responsibility
calls for "every lawyer, regardless of professional
prominence or professional workload, to find some time
to participate in serving the disadvantaged."
Describe what you have done to fulfill these
responsibilities, listing specific instances and the
amount of time devoted to each.
I have always been committed to and involved in
pro bono activities, both on a personal basis and on
institutional levels. During my D.C. Bar presidency I
focused one of my regular columns on Canon 2 of the
Code of Professional Responsibility and Ethical
Consideration 2-25. The Washington Lawyer.
November /December 1986, p. 6. I also was involved in
the creation and development of programs for the
homeless and for those seeking relief under the then-
recent amendments to the immigration laws.
I was a founder and long-time board member of the
Washington Legal Clinic for the Homeless, which has
mobilized the Washington legal community to provide
pro bono services to homeless people who live in
shelters and in the streets. In part through my
efforts, the Clinic has served as a model for the
creation of other programs around the country. As
Chair first of the American Bar Association
Representation of the Homeless Project and then as
Chair of the ABA Commission on Homelessness and
Poverty, I devoted hundreds of hours to crafting ABA
policy to help the homeless and to speaking to and
advising other bar groups to encourage them to follow
the lead of the D.C. Bar. In 1986 the D.C. Bar
program was one of only eight homeless programs of
this kind around the country (it won the coveted ABA
Harrison Tweed Award that year) ; there are now more
than 80.
I also served for two years as a member of the
ABA Standing Committee on Legal Aid and Indigent
Defendants. The Committee proposes policies on behalf
of the ABA concerning the Legal Services Corporation
and local legal services programs, and works with
state and local bar associations in their efforts to
assist in providing legal services for the poor in
civil and criminal matters. Locally, I served for
three years as a member of the Board of Trustees of
the District of Columbia Public Defender Service and
1221
participated in the selection of a new Director and a
new Deputy Director for the agency.
Because of my personal commitment to pro bono
representation by lawyers, I established the pro bono
program of the Washington office of White & Case over
a decade ago. Despite the small size of the office,
we have twice won awards from the District of Columbia
Bar for our efforts in the area of pro bono work, and
White & Case is one of the charter members of the D.C.
Bar Pro Bono Attorney Recruitment Team program. In
1991 alone, our small group devoted approximately
4,000 hours to pro bono matters.
As for my personal pro bono work, within the past
year, for example, I advised a minority contractor on
a pro bono basis in his efforts to settle a contract
dispute with an agency of the United States
Government. In 1991 and 1992, I was one of two
partners who supervised the trial team in a pro bono
death penalty case handled by White & Case. I
attended some of the trial where I assisted in witness
preparation and provided advice to the trial teeun
before and during trial.
In the mid-1980s, I represented two Liberian
women who were seeking political asylum in the United
States. They were relatives of Cabinet-level officials
in Liberia who had been ousted from power during a
violent coup and executed by the new government. All
of the women's property had been seized and they were
threatened with further economic sanctions and
physical violence. After coming to the United States
and while waiting for resident alien status to be
granted, they applied for political asylum, and we
represented them in administrative and court
proceedings .
In 1983 and 1984, I represented on a pro bono
basis the Conference of Chief Justices, a group made
up of the chief justices of all the state courts in
the United States, in preparing and filing an amicus
brief in the Supreme Court of the United States in the
case of Gladys Pull jam v. Richmond R. Allen and Jesse
W. Nicholson. 466 U.S. 522 (1984). The case raised
questions involving immunity for judges in actions for
declaratory or injunctive relief.
In the early 1980s, I represented an individual
who had been convicted in the Superior Court of the
District of Columbia for armed robbery. He had three
different lawyers during the course of his
-2-
1222
representation and there were questions raised
involving ineffective assistance of counsel. I
represented him both in the District of Columbia Court
of Appeals and in the Superior Court of the District
of Columbia in a post-trial evidentiary hearing on his
motion for a new trial.
2. The American Bar AssociatioD's CommeDtary to its Code
of Judicial Conduct states that it is inappropriate
for a judge to hold membership in any organization
that invidiously discriminates on the basis of race,
sex, or religion. Do you currently belong, or have
you belonged, to any organization which discriminates
— through either formal membership requirements or
the practical implementation of membership policies?
If so, list, with dates of membership. What you have
done to try to change these policies?
No. I have consistently declined membership in
all such organizations.
3. Is there a selection commission in your jurisdiction
to recommend candidates for nomination to the federal
courts? If so, did it recommend your nomination?
Please describe your experience in the entire judicial
selection process, from beginning to end (including
the circumstances which led to your nomination and
interviews in which you participated) .
Yes. The District of Columbia Federal Judicial
Nominating Commission recommended my nomination.
After Delegate Eleanor Holmes Norton created the
Commission, appointed its members and announced that
it was accepting applications, I obtained a copy of
the application form, completed it and submitted the
application and exhibits on May 14, 1993. A number of
individuals and groups subsequently sent letters of
endorsement to the Commission on my behalf, some at my
request, some spontaneously. I was interviewed by the
full Commission on June 16, 1993. Early in the week
of August 16, 1993, Delegate Norton called to say I
had been recommended by the Commission and to invite
me for an interview. I was interviewed by Delegate
Norton on August 20, 1993. On September 28, 1993
Delegate Norton called to say that she had decided to
recommend me to the President for nomination to the
District Court.
In October 1993, I received and completed
numerous forms sent to me by the White House,
including forms for the American Bar Association, the
Justice Department, the FBI and the Senate Judiciary
-3-
1223
Committee. In December 1993, I received a telephone
call from a representative of the Department of
Justice who asked a number of questions in that and in
subsequent telephone conversations and then invited me
for an interview. On December 17, 1993, I was
interviewed by representatives of the Department of
Justice. On January 19, 1994, I was interviewed by an
agent of the Federal Bureau of Investigation; this
interview was followed by two or three telephone
conversations with her over the next several weeks. On
February 2, 1994, I was interviewed by a
representative of the American Bar Association
Committee on the Federal Judiciary. On March 22, 1994
I was called by White House Counsel Bernard Nussbaum
to say that President Clinton was sending my
nomination to the Senate.
4. Has anyone involved in the process of selecting you as
a judicial nominee discussed with you any specific
case, legal issue or question in a manner that could
reasonably be interpreted as asking how you would rule
on such case, issue, or question? If so, please
explain fully.
No one involved in the process has discussed with
me any specific case, legal issue or question in a
manner that could reasonably be interpreted as asking
how I would rule on such case, issue or question.
5. Please discuss your views on the following criticism
involving "judicial activism."
The role of the Federal judiciary within the Federal
government, and within society generally, has become
the subject of increasing controversy in recent years.
It has become the target of both popular and academic
criticism that alleges that the judicial branch has
usurped many of the prerogatives of other branches and
levels of government. Some of the characteristics of
this "judicial activism" have been said to include:
a. A tendency by the judiciary toward problem-
solution rather than grievance-resolution;
b. A tendency by the judiciary to employ the
individual plaintiff as a vehicle for the
imposition of far-reaching orders extending to
broad classes of individuals;
c. A tendency by the judiciary to impose broad,
affirmative duties upon governments and society;
-4-
1224
d. A t«nd«ncy by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
•. A tendency by the judiciary to impose itself upon
other institutions in the manner of an
administrator with continuing oversight
responsibilities.
Probably since reading Alexander Bickel's The
Least Dangerous Branch in a political science course
in college, I have believed that the federal judiciary
has an important but limited role to play within the
federal government and within society generally. The
two judges for whom I clerked reinforced my
understanding of that circumscribed role. They both
believed, and I agree, that courts should not make
policy; that is the role of the Legislature and the
Executive. The courts should resolve disputes between
litigants and try to apply as conscientiously as
possible the law as enacted by the Congress.
When a statute is clear, I believe a judge must
apply it as written; obviously, where there is some
ambiguity or area of gray, a judge must try to
interpret the statute consistent with the statutory
scheme and the overall purpose of the law as written.
I believe a consideration of legislative history is
sometimes appropriate in this process. A court should
take a similar approach to an Executive Branch or
independent agency regulation or directive, so long as
it is consistent with statutory enactments and
promulgated in accordance with due process. While a
judge must interpret and apply the law, he or she
should never re-write it or ignore it in order to
achieve a desired result.
The trial judge is particularly constrained in
this regard. Even if a District Court judge
personally or philosophically disagrees with a
decision of the United States Court of Appeals or of
the United States Supreme Court, it is the judge's
professional obligation to follow and apply precedent
if the decision is clearly on point. It is not the
judge's role to make policy or otherwise usurp the
prerogatives of the Executive or Legislative Branches.
My approach therefore would be to apply the law as
%n:itten (including laws relating to standing or
ripeness, for example) and to follow the precedents
set forth by the higher courts.
-5-
/
/
1225
AFFIDAVIT
I, Paul L. Friedman, do swear that the information provided
in this statement is, to the best of my knowledge, true and
accurate.
(DATE)
(NAME)
<^
(NOTARY)
MY COMMISSION EXPIRES
JANUARY 14. 1995
1226
United States Senate (Committee on the judiciary)
l biographical information (pubuc)
1. Full name (include any former names used.)
ANSWER:
William F. Downes
2. Address. List cvirrent place of residence and office address(es).
ANSWER:
Ofiice address - 123 West First St., Suite 800, Casper, WY 82601
Home address - 1110 Bella Vista Dr., Casper, WY 82601
3. Date and place of birth.
ANSWER:
July 24, 1946 at Boston, Massachusetts
4. Marital Status : (include maiden name of wife, or husband's name). List
spouse's occupation, employer's name and business address(es).
ANSWER:
Date of marriage: September 20, 1977; spouse's name is Catherine L.
(Blahnik) Downes. Wife is not presently employed outside the home.
5. Education : List each college and law school you have attended, including
dates of attendance, degrees received, and dates degrees were granted.
ANSWER:
The University of Houston Law Center, Houston, Texas from August 1971 to
August 1974, J.D.; Graduated August 1974.
University of North Texas, Denton, Texas from September 1965 through
August 1968, BA; Graduated August 1968.
Quincy Junior College, Quincy, Massachusetts from September 1964 to
May 1965 (transferred to University of North Texas)
6. Emplovment Record: List (by year) all business or professional
corporations, companies, firms, or other enterprises, partnerships,
institutions and organizations, nonprofit or otherwise, including firms,
with which you were connected as an officer, director, partner, proprietor,
or employee since graduation from college.
1227
ANSWER:
1968-1973 - United States Marine Corps
1/73 to 6/74 - Steak & Ale Restaurant Corp., Dallas, Texas (waiter)
10/74 to 2/75 - Holiday Inn, Laramie, Wyoming (waiter)
11/74 to 1/75 - Underwriter's Services, Inc. (now defunct) (agent)
3/75 to 5/75 - Allied Chemical Corp., Green River, WY (laborer)
5/76 to 9/78 - Clark and Downes, Attorneys, Green River, WY (Partner)
9/78 to present - Brown & Drew, Casper, WY (Partner)
7. Military Service: Have you had any military service? If so, give
particulars, including the dates, branch of service, rank or rate, serial
niunber and type of discharge received.
ANSWER:
Branch of service: U.S. Marine Corps;
September 1968 through August 1971; July 1972 to August 1972; July
1973 to August 1973; (Note: In addition to the aforementioned dates of
active duty I have had several brief periods of active duty associated
with reserve training activities. None of those periods of active
service extended beyond two weeks.)
Highest rank attained: Captain
Serial # 0108594/Social Security #021-36-6399
Present status: Honorably discharged (1980)
8. Honors and Awards: List any scholarships, fellowships, honorary degrees,
and honorary society memberships that you believe would be of interest to
the Committee.
ANSWER-
None
9. Bar Associations: List all bar associations, legal or judicial-related
committees or conferences of which you are or have been a member and
give the titles and dates of amy offices which you have held in such groups.
ANSWER:
American Bar Association
Defense Research Institute
Defense Lawyers Association of Wyoming (President 1988-1991)
Wyoming State Bar (Chairman - Continuing Legal Education Committee
(1986- 1990 ;Unauthorized Practice of Law Committee, 1986-1992)
Natrona County Bar Association
Standing Committee on Local Rules of the United States District Court,
District of Wyoming (1992-Present)
1228
10. Other Memberships: List all organizations to which you belong that are
active in lobbying before public bodies. Please list all other organizations to
which you belong.
ANSWER:
Member of Defense Lawyers Association which occasionally lobbies the
state legislature.
Past Director, and present member of Casper Area Chamber of Commerce
Director, St. Vincent DePaul Thrift Store
Member, Casper Petroleimi Club
Member, Casper Country Club
Member, Wyoming Athletic Club
Member, State Conunittee for Employer Support of the Guard and Reserve
11. Court Admission: List all courts in which you have been admitted to
practice, with dates of admission and lapses if any such memberships
lapsed. Please explain the reason for any lapse of membership. Give the
same information for administrative bodies which require special
admission to practice.
ANSWER:
Wyoming 1975, Colorado 1988, U.S. District Court for District of Wyoming
1975, U.S. Court of Appeals, Tenth Circuit, 1986.
12. Published Writings: List the titles, publishers and dates of books, articles,
reports, or other published material you have written or edited. Please
supply one copy of all published material not readily available to the
Committee. Also, please supply a copy of all speeches by you on issues
involving constitutional law or legal policy. If there were press reports
about the speech, and they are readily available to you, please supply them.
ANSWER:
None
13. Health: What is the present state of your health? List the date of your last
physical examination.
ANSWER:
Excellent; July 2, 1993
14. Judicial Oflice: State (chronologically) any judicial offices you have held,
whether such position was elected or appointed, and a description of the
jurisdiction of each such court.
ANSWER:
None
1229
15. Citations: If you su-e or have been a judge, provide: (1) citations for the ten
most- significant opinions you have written; (2) a short summary of and
citations for all appellate opinions where your decisions were reversed or
where your judgment was affirmed with significant criticism of your
substantive or procedural rulings; and (3) constitutional issues, together
with the citation to appellate court rulings on such opinions. If any of the
opinions listed were not officially reported, please provide copies of the
opinions.
ANSWER-
Not applicable
16. Public Office: State (chronologically) any public offices you have held, other
than judicial offices, including the terms of service and whether such
positions were elected or appointed." State (chronologically) any
unsuccessful candidacies for elective public office.
ANSWER:
On March 10, 1989 I announced my intention to seek the Democratic party
nomination for U.S. House of Representatives. A special election had been
called because of the resignation of Congressman Dick Cheney. Under
Wyoming law, each political party must hold a convention for the purpose
of nominating an individual to represent the party in a special election. The
Democratic party held its special nominating convention in Casper on
March 25, 1989. I obtained 15 delegate votes (out of 60 cast) and was defeated
by John Vinich.
17. Leyal Career:
(a) Describe chronologically your law practice and experience after
graduation from law school including:
1. whether you served as clerk to a judge, and if so, the
name of the judge, the court and the dates of the period
you were a clerk;
2. whether you practiced alone, and if so, the addresses
and dates;
3. the dates, names and addresses of law firms or offices,
companies or governmental agencies with which you
have been connected, and the nature of your cormection
with each.
ANSWER:
1. I did not serve as a clerk to a judge.
2. I did not practice alone.
4
1230
See below:
Claric and Downes (1975 to 1978)
I was admitted to practice in Wyoming on May 9, 1975. On May 10th
I commenced my association with attorney Dean Clark of Green
River, Wyoming. At first, I was employed by Mr. Clark but after a
period of one year I became his law partner. Our law firm was
known as Clark and Downes. Our maihng address was P. O. Box
590, Green River, Wyoming 82935.
At the time of my association with Mr. Clark he served as the city
attorney for Green River and also as school board attorney for School
District #2 (Green River), Sweetwater County, Wyoming.
Consequently, I served as an assistant city attorney and assistant
school board attorney during my association with Mr. Clark.
Brown & Drew, 123 West First St, Suite 800, Casper, Wyoming 82601,
(1978 to present)
I joined the law firm of Brown & Drew in 1978. Initially, I worked
directly under the auspices of Mike Sullivan who was a partner and
one of the principal trial lawyers for the firm. Upon Mr. SulHvan's
departure from the firm in 1986 I assumed much of the responsibility
previously held by him. I became a partner with the firm in 1984 and
in 1991 became one of the three managing partners of the firm. I
relinquished this position in February, 1994 in anticipation of my
nomination.
(b) 1. What has been the general character of your law practice,
dividing it into periods with dates if its character has changed
over the years?
2. Describe your typical former clients, and mention the areas, if
any, in which you have specialized.
ANSWER:
From 1975 until September 1978 my practice was essentially a
general practice with emphasis in domestic relations, contracts,
business organizations, real estate transactions, municipal law and
general trial practice, mostly in my capacity as deputy dty attorney
and in handling the defense of criminal matters in district court.
From October 1978 until January 1986 my practice was a general civil
litigation practice with emphasis in personal iiyury and product
liability defense. I also assisted in the defense of medical malpractice
cases. Most of my cases were referred to me by our firm's Uability
insurance clients and the defendant's included oil companies,
drilling companies, manufacturers and physicians.
1231
From January 1986 to the present, 90% of my time has been devoted to
the defense of physicians in malpractice cases. On several occasions,
I served as plaintiffs counsel in personal injury cases.
(c) 1. Did you appear in court frequently, occasionally, or not at all?
If the frequency of your appearances in court varied, describe
each such variance, giving dates.
ANSWER:
From the period of 1975 to September 30, 1978, I appeared frequently
in Green River Municipal Court as a City Prosecutor, primarily in
the prosecution of traffic violations and DWUI cases. I also appeared
occasionally in State District Court in criminal cases (defense
counsel), and domestic relations cases.
With Brown & Drew, from October 1, 1978 through December 31, 1986,
I appeEired frequently in Federal and State District Courts.
From January 1, 1987 through July 30, 1993, I have appeared
frequently in the State and Federal Courts of Wyoming. With the
exception of 1992, I have tried an average of two cases a year during
this period. However, during that same period, I was assigned the
defense of numerous medical malpractice, personal injury and
product liability law suits. Some of these suits were resolved by
summary judgment and others were settled after protracted
discovery. I also appeared in many motion hearings regarding
procedural and substantive issues.
From July 1, 1993 to the present I have not had any trieds, sdthough I
have continued to appear occasionally in motion practice before
federal and state courts. I have continued to be frequently involved in
litigation, almost exclusively in medical malpractice defense.
2. • What percentage of these appearances was in:
(a) federal courts;
(b) state courts of record;
(c) other courts.
ANSWER:
a) Federal courts: approximately 25%
b) State courts of record: approximately 70%
c) Other courts: 5%
3. What percentage of your litigation was:
(a) civil;
(b) criminal.
1232
ANSWER:
(a) Civil -95%;
(b) Criminal - 5%
4. State the number of cases in courts of record you tried to verdict
or judgment (rather than settled), indicating whether you were
sole counsel, chief counsel, or associate counsel.
ANSWER:
I have tried approximately 32 cases in Federal or State District
Courts of Wyoming. In ten cases I was sole coimsel. I was
associate counsel in six and chief counsel in all others.
5. What percentage of these trials was:
(a) jviry;
(b) non-jury
ANSWER:
(a) jury 72%
(b) non-jury 28%
18. Litigation: Describe the ten most significant litigated matters which you
personally handled. Give the citations, if the cases were reported, and the
docket number and date if unreported. Give a capsule summary of the
substance of each case. Identify the psirty or parties whom you represented;
describe in detail the nature of your participation in the htigation and the
final disposition of the case. Also state as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or judge before
whom the case was litigated; and
(c) the individual name, addresses, and telephone numbers of co-
counsel and of principal counsel for each of the other parties.
ANSWER:
Case #1 United States of America vs. Floyd A. Rummel, Jr.
Trial Court: U.S. District Court, District of Wyoming
Civil Action No. CR78-1018
Judge: Honorable Ewing T. Kerr (deceased)
Trial Period(6) December 11 to December 16, 1978
Co-oounseL Ronald L. Brown
425 West Mulberry Street, Suite 105
Ft. Collins, Colorado 80521
1233
Opposing
Counsel:
Parfy Repre-
sented:
Nature of
Participation:
Summary of
Case:
EHspositionof
the Case:
Significance of
the Case:
303/484-7314
and
Robert Bloom
Last known address: 1 Farragut Square So
Washington, D.C. 20006
202-347-1631 (Mr. Bloom is no longer listed in the
Washington, D.C. directory and I have had no
contact with him in ten years.)
Mr. Charles Graves (formerly the U.S. Attorney for the
District of Wyoming)
408 West 23rd Street
Cheyenne, Wyoming 82001-3519
307/638-8885
Floyd A. Rummel
Ron Brown was the chief defense counsel in this case
however, I played a major role in the case to include
conducting voir dire (which had been permitted in a
hmited fashion by Judge Kerr), opening statement and
most significantly, cross examination of the principal
government witness against Mr. Rummel. I also played
a significant role in the preparation of motions and
bnefs and I worked closely with attorney Bloom in
preparation of post- triad motions.
Mr. Rimamel was indicted by a grand jury in 1978. The
criminal indictment contained seven counts five
charging violations of 18 U.S.C. Section 656, willful
misapplication of bank funds, and two charging
violations of 18 U.S.C. Section 215, accepting fees for the
making of loans.
The Section 656 couints were dismissed prior to trial
Commencing on December 11, 1978 the defendant was
tned by the jury on the remaining Section 215 counts.
The jury was unable to reach a unanimous decision and
the Court declared a mistrial on December 16, 1978 after
having taken under advisement defendant's motion for a
judgment of acquittal pursuant to Rule 29.
On January 4, 1979, the Court granted defendant's
motion and ordered that judgment of acquittal be entered
as to the Section 215 counts of the indictment.
This case was one of a series of cases prosecuted by the
Justice Department in the late 70's and early 80's
8
1234
dealing with misapplication of bank funds and other
abuse involving lending practices of federally insured
banks. The case against Floyd Rummel was a
"showcase" trial in this region.
Case #2:
Trial Court:
Judge:
Trial PeriodCs):
Co-CounseL
Opposiiig
Counsek
Lisa Ann Wilson vs. Raja Chandra, M.D.
Second Judicisd District, Carbon County, WY
Civil Case No. 82C-572
Honorable Robert A. Hill (deceased)
October 3-17, 1983
None
Richard Meyer
Meyer & WilUams
350 East Broadway
P.O. Box 2608
Jackson, WY 83001-2608
307/733-8300
Parly
Represented:
Dr. Chandra
Nature of
Particqiation:
Siunmaryof
the Case:
I was the sole defense counsel for Doctor Chandra and
participated in all aspects of the trial.
The Plaintiffs sued Dr. Chandra for the death of their
infant son, Austin Wilson. They contended that the
Doctor had failed to diagnose the existence of an
infection of the umbilical cord and of the abdominal wall
and that, as a proximate cause of his failure to diagnose
the existence of the infection, the child had died. The
plaintififs also contended that the doctor was negligent in
failing to leave understandable orders with his nursing
staff at the hospital and his office.
Defendant, Dr. Chandra, denied the allegations of
negligence and asserted that the parents themselves had
been negligent in failing to follow routine instructions
for umbilical cord cleaning and further that they failed
to seek timely medical assistance when the child's
abdomen became red and distended.
9
1235
Final
Disposition:
Significance
of the Case:
The jury found in favor of the defendant physician and,
significantly, determined that 100% of the negHgence
was attributable to the parents.
Plaintiff did not appeal and, therefore, its significance to
the legal community is limited. However, at that time,
Mr. Meyer was a partner of Gerry Spence, and the case
had received a great deal of notoriety in the City of
Rawlins where it was tried. Of particular concern to the
defense was the fact that Dr. Chandra was an
immigrant from Madras, India, and he was being sued
by the children of prominent local residents. The
suggestion that Dr. Chandra had not left
"understandable" instructions with medical staff was
predicated on the fact that he spoke English with a thick
Indian accent.
Case #3:
Trial Court:
Judge:
Trial Period(s):
Co-Counsel:
Husman vs. Batty, Mussel & Batty
District Court, Fourth Judicial District, Sheridan
County, WY
Civil Case No. C38-2-84
Honorable James Wolfe
February 11-20, 1987
None
Counsel for
Co-defendants:
Opposing
CounseL
Joseph E. Vlastos
Vlastos, Brooks & Henley
300 South Wolcott, Suite 320
P.O. Box 10
Casper, WY 82602-0010 .
307/235-6613
Frank D. Neville
Williams, Porter, Day & Neville
Durbin Center
145 South Durbin, Suite 300
Casper, WY 82601-2567
307/265-0700, and
Terry W. Mackey
American National Bank Bldg.
1912 Capitol Avenue, Suite 400
10
1236
Party
Represented:
Nature of
Participation:
Summary of
the Case:
Final
Disposition:
Significance
of the Case:
Cheyenne, WY 82001-3660
307/637-7841
Jake Batty, M.D. and Hugh Batty, M.D. and their
professional corporation
I was the sole defense counsel for Doctors Jake and
Hugh Batty and participated in all aspects of the trial.
Mrs. Husman brought her medical malpractice action
against the defendants alleging negligent treatment by
the defendants in March of 1982. The plaintiff was seen
by Dr. Hugh Batty in the emergency room of the
Sheridan County Memorial Hospital on or about March
24, 1982, with complaints of severe abdominal pain.
After examination. Dr. Batty determined that a surgical
consultation was necessary and defendant, Dr. Howard
Mussell, was consulted. Exploratory laparotomy,
performed by Dr. Mussell, revealed a twist in the bowel
(volvulus), which had caused an obstruction.
Unfortunately, the plaintiff had to undergo two
subsequent surgical procedures to remove necrotic
bowel.
After these procedures, it was alleged that Dr. Batty
prescribed treatment for leg pain in a negligent fashion.
Specifically, it was asserted that he had failed to
diagnose the possible complication of clotting in the legs.
A subsequent angiogram determined that the patient
had a total obstruction of the abdominad aorta zmd a total
obstruction of the left femoral artery. These obstructions
required another surgical procedure in which Dr.
Mussel removed numerous thrombi from both the left
and right common iliac artery. Unfortunately, the
plaintiff did not regain satisfactory pulses in her left leg
and her condition continued to deteriorate until the leg
was amputated below the knee on March 31, 1982.
Among other things, the plaintiff alleged that the
appUcation of a hot water bottle by defendant Batty fell
below the standard of care and was a proximate cause of
the clotting.
The jury found in favor of the defendant physicians.
This case received notoriety in the Sheridan community
because it involved a suit against a father and son
physician team and a prominent Sheridan surgeon.
11
1237
Case #4:
Trial Court:
Judge:
Trial Period(s):
Co-CounseL
Opposing
Counsel:
Party
Represented:
Nature of
Participation:
Summary of
Case:
Hamilton vs. Batty
District Court, Fourth Judicial District, Sheridan
County, WY
Civil Case No. C-552-86
Honorable James Wolfe
December 10-23, 1987
C. John Cotton
Law Firm of J. Stan Wolfe
500 First Interstate Bank
222 South Gillette Avenue
Gillette, WY 82716-3743
307/682-2151
John E. Stanfield
Smith, Stanfield & Scott
515 Ivinson Avenue
P.O. Box 971
Laramie, WY 82070-0971
307/745-7358
Hugh K. Batty, M.D.
Douglas G. Madison
Dray, Madison & Thompson
240 East 22nd St.
Cheyenne, WY 82001-3799
307/634-8891
I served as chief defense counsel for Dr. Batty and I did
the vast majority of the direct and cross examination of
witnesses, as well as jury selection, opening statement
and closing argument.
Plaintiffs Patsy Hamilton and her son, Kelly, brought
this medical malpractice action against Memorial
Hospital of Sheridan County and Dr. Hugh Batty,
alleging that the defendants had been negligent in the
management and care of Mrs. Hamilton, failed to
diagnose the presence of a staph infection, and mis-
diagnosed the disease of sarcoidosis as Ijnnphoma. She
further alleged improper management of her diabetic
condition. The defendant hospital settled with the
plaintiffs prior to trial (counsel for the hospital was
Patrick Dixon, Dixon & Despain, 111 West 2nd, Suite 400,
Casper, WY 82601-2467, 307/266-2949). Defendant, Dr.
Batty, denied all allegations of negligence. He asserted
that he had properly managed Mrs. Hamilton's care
and specifically in making a preliminary alternative
diagnosis of lymphoma after a l)rmphangiogram showed
abnormal findings. He further contended that he
promptly advised Mrs. Hamilton of the appropriate
diagnosis as soon as subsequent diagnostic tests allowed
12
1238
Final
Disposition:
Significance
of the Case:
Case #5:
Trial Court:
Judge:
Trial Period(s):
Co-Counsel:
Opposing
CounseL
Paity
Represented:
Nature of
Participation:
Summary of
Case:
him to rule out the presence of lymphoma. He also
asserted that he adhered to the standard of care by
promptly referring the plaintiff to a Billings, Montana,
hospital for follow-up diagnostic tests concerning her leg
pain, tests which eventually revealed the presence of
staph infection.
The jury found in favor of the defendant physician.
Again, this case had significance primarily to the
parties involved, and no appeal was taken from the
verdict. However, the case had local significance
because this was the second time in twelve months that
Dr. Hugh Batty had stood trial in his home town for
medical negligence.
Coulton vs. Mark Brann, M.D. & Smith's Food King
Third Judicial District, Uinta County, WY
Civil Case No. 88-0176
Honorable John Troughton
(approximately a two-week trial in August of 1989)
None
(Counsel for co-defendant was Lisa A. Yerkovich, Ray
Quinney & Nebeker, 79 South Main Street, P.O. Box
45385, Salt Lake City, UT 84145-0385, 801/532-7543. Ms.
Yerkovich's client settled with the plaintiff prior to trial.)
Robert J. Reese
Reese & Mathey
160 East Flaming Gorge Way
P.O. Box 1060
Green River, WY 82935-1060
307/875-5175
Mark Brann, M.D.
I served as sole defense counsel for Dr. Brann.
The plaintiff sued Dr. Brann alleging negligence for
prescribing phenobarbital from January through
September of 1986. She also alleged that the drugstore at
Smith's Food King was negligent in filling the
phenobarbital prescriptions without consulting Dr.
Brann and without questioning the excessive dosage of
medication. The plaintiff alleged that the prolonged
excess dosage of phenobarbital caused severe physical
13
1239
symptoms, including mental disorientation,
drowsiness, dizziness and severe memory loss. She
contended that she lost her job because of the symptoms,
and she also contended that treatment of a pre-existing
benign brain tumor was complicated by the overdose.
Prior to the trial. Dr. Brann conceded that he overdosed
the patient from Jamusiry to September of 1986 because of
an erroneous entry made in the patient's chart following
her first oHice visit. The defendant contended that the
phenobarbital dosage could not cause the symptoms
described by the plaintiff and that it was not a a
proximate cause of her alleged irgiiries.
Filial
Disposition:
Significance
of the Case:
The jury found in favor of the defendant physician.
This case was not reported and it therefore has no
significance in Wyoming law. Its significance to the
parties was that Dr. Brann had to admit, in the presence
of the jury, that he deviated from the standard of care by
prescribing excessive dosages of phenobarbital for a
prolonged period of time. There was grave concern that
this fact alone would cause a jury to overlook the
causation defense.
Case«6:
Trial Court:
Judge:
'ItialP6riod(s):
Co-CounseL
Mathem vs. Duvall
U.S. District Court, District of Wyoming
Civil Case No. C89-0192
Honorable Clarence Brimmer
April 16-28, 1990
David G. Lewis
P. O. Box 7736
Jackson, WY 83001
307/739-8900
Opposmg
Counsek
Gary D. Jensen
Lynn, Jackson, Shuiz & Lebrun, P.C.
P.O. Box 8250
Rapid City, SD 57701-8250
Telephone # 605/342-2592
and
Terry W. Mackey
American National Bank BIdg.
1912 Capitol Avenue, Suite 400
14
1240
Party
Represented:
Nature of
Participation:
Sununary of
Case:
Final
Disposition:
Significance
of the Case:
Cheyenne, WY 82001-3660
307/637-7841
Kirby Duvall, M.D.
I served as chief defense counsel for Dr. Duvall.
Although 1 shared responsibilities for examining
witnesses with Mr. Lewis, I cross-examined the
plaintiffs principal medicsd experts and conducted the
direct or cross-examination of at least half of the
remaining witnesses. I jdso gave the closing argument.
The plaintiffs sued Dr. Duvall for medical malpractice,
alleging that he had improperly performed a rectal
examination and subsequent sigmoidoscopy. The
plaintiffs also contended that Dr. Duvall was negligent
in managing the follow-up care of Mr. Mathern,
specifically alleging that he ignored signs of rectal
bleeding and that he mis-diagnosed frank rectal cancer
as internal hemorrhoids.
Dr. Duvall denied the allegations and insisted that he
had properly managed the care of Mr. Mathern. Dr.
Duvall also asserted that Mr. Mathern had been
negligent in failing to seek medical care for prolonged
rectal bleeding.
The jury rendered a defense verdict. Post-tried motions
filed by the plaintiff were denied.
This case was not appealed to the Tenth Circuit and so
no case law was established. However, it was
significant in that, by the time of the trial, the plaintiff
was obviously ill and dying. It was of great concern to
the defense that the sympathy factor would override the
jury's ability to objectively assess the evidence.
Case #7
Trial Court:
Judge:
Trial Period(s):
Co-CounseL
Wardell vs. McMillem, et al.
Fifth Judicial District, Park County, Wyoming
Civil Case No. 16524
Honorable Hunter Patrick
November 13-December 7, 1990
Jeffrey C. Brinkerhoff
Brown & Drew
123 West First Street, Suite 800
Casper, WY 82601-2486
307/234-1000
15
1241
Counsel for
Co-Defendants:
Opposing
CounseL
Party
Represented:
Nature of
Participation:
Summary nf
Case:
Robert M. Shively
Murane & Bostwick
201 North Wolcott
Casper, WY 82601-1930
307/234-9345
(attorney for defendant, Stan Peters, M.D.)
and
Michael K. Davis
Redle, Yonkee & Toner
319 West Dow Street
P. O. Box 6288
Sheridan, WY 82801-6288
307/874-7451
(Mr. Davis was attorney for defendant, West Park
Hospital. The hospital settled prior to trial.)
James E. Fitzgerald
Fitzgerald Law Offices
2108 Warren Avenue
Cheyenne, WY 8200 1-3740
307/6344000
Jon McMillan, M.D.
I served as chief defense counsel for Dr. McMillan.
The plaintiffs sued the defendant physicians and West
Park Hospital District. The cause of action £trose from
the care and treatment of the plaintifTs' minor child,
Neil Wardell. It was alleged that Neil Wardell had
fallen in a school yard while playing with his playmates.
Within minutes he began to feel pain in his back and
extremities. He was able to walk to the office of the
principal. There he was seen by EMT's who
immobilized him and transported him to the West Park
Hospital in Cody, Wyoming.
Defendant, Dr. Peters, ordered x-ray films which
showed no abnormality of the spinal column and he
allowed the collar to be removed from the child's neck.
During this period, the child was seen in consultation by
Dr. McMillan, a Cody orthopedic surgeon. The child's
condition continued to deteriorate and he was
transported to a Billings, Montana, hospital and
subsequently to Children's Hospital in Denver, Colorado.
His condition worsened until he became a quadriplegic.
16
1242
Filial
Disposition:
Significance
of the Case:
Plaintiffs contended that the defendants had been
negligent in failing to maintain immobilization of the
child's neck and that the failure to do so caused a
subsequent trauma to the spinal cord resulting in
paralysis.
The defendants denied the allegations, contending that
they had followed all appropriate protocol for
management of this injury. Additionally, the
defendants asserted that the spinal cord injury was
complete at the time the child suffered his injury in the
school yard and that the sabsequent events
demonstrated only the tragic progression of a serious
spinal cord injury.
The jviry rendered a defense verdict on December 7, 1990,
but the plaintiffs appealed this decision and on
December 31, 1992, the Wyoming Supreme Court
reversed on the following grounds: The Supreme Court
determined that under Wyoming Rules of Civil
Procedure a trial court must afford each party an
additional peremptory challenge when an alternate
juror is seated. The Supreme Coiut also found that the
trial court had erred in instructing the jury that there
was a presumption that a doctor or physician had
exercised due care. However, the Supreme Court did not
reach the issue of whether the error warranted reversal.
The Court also found that, under Wyoming's
comparative negligence statute, disclosure of
settlements is not required. The Supreme Court also
addressed several other issues related to discovery and
the permissibility of voir dire of potential jurors
concerning the alleged 'insurance crisis' and 'medical
malpractice crisis'. See, Wardell v. McMillan, 844 P.2d
1052 at 1065 (Wyo. 1992).
The case was remanded for a trial, consistent with the
Supreme Court's findings. Subsequently, the case
settled for an luidisclosed sum.
This case involved substantial issues on appeal which
will have far-reaching repercussions in Wyoming.
Case #8:
Trial Court:
Judge:
Shepperson vs. Christensen and Vigneri, M.D.'s
Seventh Judicial District, Natrona County, Wyoming
Civil Case No. 65433
Honorable Dan Spangler
17
1243
Trial Period(s):
Co-CounseL
Opposing
CoimseL
Paily
Represented:
Nature of
Participation:
Summary of
Case:
Final
Disposition:
January 28-February 5, 1991
David G. Lewis
P. O. Box 7736
Jackson, WY 83002
307/733-8900
Bryan E. Sharratt
Sharratt & Sharratt P.C.
9th & Water Streets
P.O. Box 159
Wheatland, WY 82201-0159
307/322-9211
Kent Christensen and Joseph Vigneri, M.D.'s
I served as chief defense counsel.
The plaintiff filed suit alleging negligence in faihng to
diagnose cancer of her larynx. She contended that Dr.
Christensen had negligently failed to identify the
presence of cancer in his examination of her larynx, and
that, as an a proximate cause, she was required to have
more radical surgery, resulting in the loss of her
natural voice. She also claimed disfigxirement, loss of
enjoyment of life, medical expenses and loss of future
income.
The defendant physicians denied the allegations of
negligence. They contended that Dr. Christensen had
exercised reasonable care in performing his
examination and that the cancer, which may have been
present at that time, was difficult to diagnose because of
its location. Further, they asserted that even if the
cancer had been diagnosed months earlier, the plaintiff
would have undergone the surgical removal of her
larynx.
Dr. Vigneri was granted a directed verdict at the close of
plaintiffs case in chief, and, subsequently, the jury
granted a defense verdict on behalf of Dr. Christensen on
February 5, 1991.
Significance
of the Case:
This case was not reported and therefore has no general
significance in Wyoming law. However, the case
presented a grave challenge to the defense because it
was necessary for the defense to concede that, in all
Ukelihood, the cancer of the larynx was present at the
18
1244
Case #9
Trial Court:
Judge:
Trial Period(s)
Counsel for
Co-Defendant:
Opposing
CounseL
Parties Repre-
sented:
Nature of
Participation:
Summary of
Case:
time Dr. Christensen performed his first laryngoscopy
procedure. Also, the issue of staging of the cancer and
the growth of cancer cells were significant issues
requiring substantial medical expert testimony.
Bedonie vs. I. Laurence Gee, M.D., Lander Medical
Clinic, P.O., D. R. Phipps, M.D., H. D. Thomason, M.D.,
P.R. Gilbertson, M.D., L. G. Gill, III, M.D., D. A.
GuUickson, M.D., H. B. Tipton, M.D., and Edward
Dowie, P. A.
United States District Court, District of Wyoming
Civil Action No. 91-CV-1008-B
Honorable Clarence Brimmer
August 26, 1991 to September 12, 1991
Robert M. Shively
Jack Gage, P. O. Box 1223, Cheyenne, WY 82003
307/632-1112
Lander Medical Clinic, P.C., Doctors Gee, Phipps,
Thompson, Gilbertson, Gill, GuUickson, and Tipton and
Edward Dowie, P.A.
I served as chief defense counsel for all the defendants
except Dr. Laurence Gee
The plaintiff charged medical negligence against Ed
Dowie, Doctors Gee, Phipps, Thomason, Gilbertson,
Gill, GuUickson, Tipton and The Lander Medical Clinic
stemming from the fact that the plaintiffs child, Andrea
Bedonie, suffered from what plaintiffs alleged was an
unrecognized case of spinal meningitis. Plaintiff
asserted that Dr. Gee and, subsequently, Ed Dowie an
employee of the Lander Medical Clinic, Dr. Phipps and
Dr. Lang failed to recognize and timely intervene during
the initial stages of the spinal meningitis infection.
The child suffered seizures and was admitted to the
emergency room of the Lander Valley Regional Medical
Center. She was subsequently transferred to Children's
Hospital. As a consequence of her illness, the child was
paralyzed and suffered from severe mental disorders
which caused mental retardation. The defendants
generally denied the allegations and asserted that the
plaintiff had been negligent in the management of her
child's care and had delayed in seeking medical care
19
1245
Disposition <^
Case:
Significance
of the Case:
Case #10:
Trial Court:
Judge:
Trial Period(s):
Co-Counsel:
Kerr McGee's
In-house
Counsel:
and, instead, sought the services of an Indian Medicine
Man.
The jury rendered a defense verdict.
This case was not appealed and so the case will have no
long-term implications. However, it was the first time
that I know of that a Federal District Judge in Wyoming
had to deal with the question of the admissibility of
evidence concerning plaintiffs use of the drug, payote.
The defendants had contended that the issue was
relevant to the question of negligence on the part of the
mother, who had admitted in her discovery deposition
that she had used payote as part of a religious ritual in
praying for her daughter's recovery. Judge Brinuner
determined that it was not permissible inquiry by the
defendants and refused to allow any reference to the use
of payote during trial.
Kerr McGee vs. ANR
Eighth Judicial District, Converse Coimty, Wyoming
CivU Case 11117
Honorable Gary Hartman
June 7-28, 1993
Craig Newman
Brown & Drew
123 West First Street, Suite 800
Casper, WY 82601-2486
307/234-1000
Jack Brandon
Chris Tjrtanic
Kerr McGee Corporation
Kerr McGee Center
Oklahoma City, OK 73125
405/270-2851
Counsek
Michael 8. Yauch
ANR Production Company
Coastal Tower, Suite 882
9 Greenway Plaza
Houston, TX 7704
713/877-6849
and
J. Scott Bumworth
20
1246
Party
Represented:
Nature of
Participation:
Summary of
Case:
Petroleum Building
111 West 2nd Street, Suite 400
Casper, WY 82601-2467
307/266-2949
and
Cameron S. Walker
Schwartz, Bon, McCrary & Walker
Conroy Building
141 South Center, Suite 505
Casper, WY 82601-2588
307/235-6681
Kerr McGee Corporation
I was responsible for either the direct or cross-
examination of approximately half of the witnesses
presented at trial. I also argued pre-trial motions smd
motions during the trial. Also, I participated in closing
argument.
Plaintiff, Kerr McGee Corporation, on behalf of working
interest owners in the Powell Pressure Maintenance
Unit, Converse County, Wyoming, filed this lawsuit,
asserting claims for trespass, conversion, breach of
contract, bad faith and punitive damages.
The plaintiff contended that for a period of
approximately two years, defendeuit had drained oil and
associated hydrocarbons from the Powell Pressure
Maintenance Unit. Kerr McGee Corporation is the
designated operator of an aggregation of individually-
owned oil and gas leases for the conduct of enhanced
recovery operations in the first bench of the First
Frontier formation, (the aggregation of leases is known
as the Powell Pressure Maintenance Unit). Kerr McGee
contended that the improper drainage of the unit
occurred when ANR drilled to completion a well in the
second bench of the First Frontier and, in the process of
completing the well, fracture-treated it in such a way as
to cause extensive communication between the two
productive zones (the second bench underlies the first
bench unitized formation and is separated only by a 50'
sandy shale formation). The plaintiff contended that the
fracture treatment performed on the well was far in
excess of whit was appropriate and that the materials
used for the fracture treatment, intermediate strength
proppant, or ISP, allowed the created fractures to
remain open, thus permitting hydrocarbons to flow from
the higher pressure zone unitized formation into the
21
1247
Final
Disposition:
Significance
of the Case:
second bench. The plaintiff also contended that
subsequent tests performed on ANR's well (the South
Powell Federal 2-1) confirmed this communication
between the two zones. Kerr McGee alleged that as a
consequence of this communication between the first
and second bench, five to eight million dollars of the
imitized fields' hydrocarbons were improperly converted
by defendant.
On December 14, 1993 Judge Hartman granted
judgment for the plaintiff in the amount of $6,038,075.02.
Post trial motions by defendant are pending.
This case is significant, in part, because the Wyoming
Supreme Court had earlier issued a decision affirming
the findings of the Wyoming Oil & Gas Commission,
which had ordered the shut-in of the South Powell 2-1
because it was causing irreparable harm to the unitized
formation (the PPMU). As a consequence, the trial
judge ordered that the defendant was collaterally
estopped from offering a defense, which would have the
effect of questioning the essential findings of the Oil and
Gas Commission (the Wyoming Supreme Court decision
is entitled ANR Production v. Wyoming Oil & Gas
Comm., 800 P.2d 492 (Wyo. 1990).
19. I.epal Activities: Describe the most significant legal activities you have
pursued, including significant litigation which did not progress to trial or legal
matters that did not involve litigation. Describe the nature of your participation
in this question, please omit any information protected by the attorney-client
privilege (unless the privilege has been waived).
I. Significant litigation which did not progress to trial:
Ca6e#l:
Court-
Murray vs. Pacificorp. et al..
Civil Action No. C86-0236
United States District Court, District of Wyoming
Nature of my
participation: My partner, Mark W. Gifford, and I served as plaintiffs
counsel.
Factual
background:
On June 10, 1986 Nicholas J. and Rilla K. Murray sued
the Pacificorporation alleging negligence by the
defendant in the operation of the Dave Johnston Power
22
1248
Resolution:
Case #2:
Court:
Plant in Converse County, Wyoming. Specifically, the
plaintifTs asserted that the pulverizer unit of the plant
was being operated in a manner which the defendants
knew or should have known posed imminent risk of
serious injury to those working in the vicinity of it.
Plaintiff Nicholas Murray had been injured on June 3,
1985 when, as an employee of a subcontractor nsmied
Foster Wheeler, he was severely burned when the
pulverizer caught fire and exploded. The explosion was
caused by coal dust build-up in the primary air fan of the
pulverizer. Methane flames emanating from the
inboard side of the primary air fan was the source of the
ignition.
Mr. Murray sustained bums over 30% of his body with
12-15 percent of those bums being third degree bums of
the dorsum of both hands and forearms. He also
suflTered second degree bums to the should, back, neck,
face and ears.
After many months of discovery, the Pacificorporation
agreed to settle this case. The amount of the settlement
is confidential. The settlement agreement was reached
in Febmary, 1987.
Dehnert vs. CNA Insurance Company and Larry
Lawton, Civil Action No. 23925
Ninth Judicial District Court, Fremont County,
Wyoming
Nature of
participation:
Factual
background:
I served as chief plaintiffs' counsel.
The plaintiffs, Eugene F. Dehnert and Dehnert,
Richardson and Bensman, P.C, brought this action
against their malpractice insurance company, CNA,
asserting that the insurance compjmy had exercised bad
faith in the manner in which it handled the defense of a
suit against the plaintiffs. Mr. Lawton, the defense
attorney in the prior lawsuit, was sued for legal
malpractice.
In 1983 Arrow Sprinklers, Inc., a Utah Corporation,
sued Mr. Dehnert on theories of negligence and
intentional interference with a contractual relationship.
Mr. Dehnert, it was alleged, had wrongfully interfered
23
1249
with a contract between Arrow Sprinklers and Fremont
County School District #1 when Mr. Dehnert had
recommended the cancellation of a contract with Arrow
Sprinklers for the installation of a substantial sprinkler
system. Mr. Dehnert and the architectural firm
asserted as their defense their obligation to advise their
client, the School District, concerning deficiencies they
had observed during the construction phase of the
sprinkler system.
CNA Insurance Company, after obtaining the dismissal
of negligence claims covered by its liability insurance
policy, issued a reservation of rights letter with respect
to the remaining claim prior to the commencement of
the jury trial. After the entry of an adverse verdict of
$400,000, CNA refused to perfect the appeal, thus forcing
the defendants into bankruptcy. It was at this point that
I became counsel for the defendants.
With the assistance of my partner, Kenneth Barbe, we
perfected an appeed to the Wyoming Supreme Court. On
August 29, 1985 the Supreme Court held that suHicient
evidence existed to find that the architect and his firm
acted without malice or bad faith when they advised the
school board to terminate its contract with Arrow
Sprinklers, despite their preliminary approval in the
planning stage of the installation of the system.
The Court stated that an architect who acts within the
scope of his contractual obligation to protect the interests
of his principal cannot be held liable for intentional
interference with a contract relationship if he advises
his principal to terminate a contractor's performance,
unless there is clear finding of malice or bad faith.
Since no malice or bad faith were found in this case, the
Supreme Court reversed the judgment of the District
Court and remanded the case for entry of a judgment
consistent with its opinion. See Dehnert vs. Arrow
Sprinklers. Inc., 705 P.2d 846 (Wyo. 1985).
After our successful appeal, I sued CNA and Mr.
Lawton. As against CNA, the plaintiffs asserted an
action based upon breach of contract by CNA for failing
to honor the provisions of its insurance policy. Elements
of the claim included CNA's breach of its duty to
adequately defend, including its failure to appeal.
Plaintiffs also asserted a breach of the implied covenant
of good faith and fair dealing and for bad faith. Mr.
Lawton was sued for legal malpractice.
21
1250
Resolution:
Case #3:
Court:
Nature of
participation:
The case was settled in 1988 on terms which remain
confidential.
Kathenne I. Wimpy-Payne , et al. vs. David F. Crowder,
M.D., Davol and C. R. Bard, et al.
Civil Action No. 17793
Wyoming Sixth Judicial District Court, Campbell
County, Wyoming
I served as a chief defense counsel for defendants Davol,
C. R. B£u-d and Bard Access Systems.
Factual
backgroundL*
Resolution:
Case #4:
On June 30, 1992, Plaintiffs filed their first amended
complaint. The complaint asserted a claim of
negligence against defendant. Dr. Crowder, for the
manner in which in inserted a Groshong valve and
catheter in the right ventricle of Mr. Wimpy's heart.
The complaint asserted that on April 26, 1989, Dr.
Crowder undertook to remove the Groshong valve and
catheter and, during the process, the catheter transected
and a dangerously large piece of the catheter was left in
the subclavian vein and the right atrium of the
plaintiffs heart.
The plaintiffs asserted that leaving the fragmented
catheter in the venous system of the plaintiff
unreasonably increased the risk of harm to Mr. Wimpy
and, as a direct and proximate result, he died of
multiple organ failure, including right heart failure and
pulmonary artery thrombo-emboli on July 1, 1990.
In addition to his claim of medical negligence, which
had been asserted in its initial complaint filed on April
24, 1991, the plaintiffs now brought a cause of action
against Bard Access Systems, Inc. and is parent
companies, C. R. Bard and Davol, Inc., asserting claims
of strict liability and negligence in the design and
manufacture of the Groshong valve and catheter.
This case was settled on March 29, 1993 for a sum of
money which remains confidential.
Neville, et al. vs. Fogarty, et al.
Civil Action No. 8584
25
1251
Court:
Nature of
particii>ation:
Factual
background:
Ninth Judicial District Court, Teton County, Wyoming
I served as chief defense counsel for defendant James J.
Avakian in my capacity as Special Assistant Attorney
General for the State of Colorado.
This was a medical malpractice action brought by Susan
M. Neville in her capacity as personal representative of
the estate of Charles D. Walker, her deceased husband,
and her minor children, Jennifer Walker and Shawn D.
Walker. In addition to Dr. Fogarty, plaintiffs also sued
James J. Avakian, M.D. Dr. Avakian, at all relevant
times, had been serving in a locum tenens capacity with
Dr. Fogarty in Jackson Hole, Wyoming. During this
locum tenens service Dr. Avakian was still a resident in
pathology at the University of Colorado Health Sciences
Center in Denver. When the suit was filed the State of
Colorado agreed to accept a tender of defense on behedf of
Dr. Avakian. The Attorney General of Colorado
appointed me as a Special Assistant Attorney General to
defend the State's interest in this suit.
In her complaint, the plaintiff asserted that defendant.
Dr. Avakian, committed medical negligence when he
allegedly failed to diagnose a malignant melanoma.
Mr. Walker had a mole resected from his back on May
10, 1985 and the tissue had been sent for interpretation by
Dr. Bill Fogarty. Dr. Fogarty was not present at the
time the tissue was submitted and, instead, the
interpretation was made by Dr. Avakian. Dr. Avakian
made a pathology sHde of the tissue and on May 13, 1985
interpreted the slide to show a benign nevus.
Mr. Walker had no additional problems until late
summer 1989 when he began to experience increasing
discomfort on the right side of his upper extremity
extending from the shoulder to the distal forearm.
Subsequent examinations and exploratory surgery
revealed the presence of a metastatic melanoma to the
right axilla. The cancerous lesion was totally excised
but, unfortunately, metastasis to other organs of the body
had already taken place. Despite aggressive oncological
treatment, Mr. Walker died in January of 1990.
We defended the case by asserting that Dr. Avakian's
misread of the tissue was irrelevant because the surgeon
26
1252
who had excised the lesion had taken the entire
cancerous tissue—the exact procedure which would have
been followed had Dr. Avakian diagnosed malignancy.
Further, we contended that, since medical science had
not yet developed any other acceptable method of
treatment for malignant melanoma except total
excision, no follow-up treatment could have arrested the
progression of this virulent cancer.
Resolution: The case proceeded to trial in Augiist of 1993. However,
after three days of jury selection, a confidential
settlement was reached between the plaintiffs and all of
the defendants.
II. Other signiflcant legal activities:
1. Member of the Standing Committee on Local Rules for the U.S.
District Court, District of Wyoming, (1992-Present). During my
tenure the committee has rewritten the local rules of the U.S. District
Court for the District of Wyoming for civil and criminal cases. These
rules implemented a plan to meet the requirements of the Civil
Justice Reform Act of 1990, which required each federeil district to
institute a civil justice expense and delay reduction plan. The revised
rules became effective on December 2, 1992. Subsequently, the
committee further refined the rules and issued its revised local niles
on November 30, 1993.
2. Former Member Wyoming State Bar Continuing Legal Education
Committee (Chairman 1988-92). The committee was charged with
the responsibility of organizing all of the State Bar's continuing legal
education programs.
3. Member Defense Lawyers Association of Wyoming (President 1989-
91). When I became president of the Defense Lawyers Association,
the organization had almost ceased to exist. It had approximately
thirty dues paying members and had met infrequently during the
previous four years. It had never offered a convention or CLE
program and it had never had a registered lobbyist to represent the
association at the State Legislature. During my tenure, membership
was increased to approximately 110 lawyers. Annual conventions,
including CLE programs were instituted. In addition, a newsletter
was published and a brief bank was established. The services of a
non-paid registered lobbyist and a paid part-time executive director
were obtained.
4. Wyoming Intergovernmental Judicial Study Commission (1989). In
April 1989, the commission, formed by an agreement between the
Governor, the Wyoming Supreme Court and the Wyoming State Bar,
with representation from the Wyoming Legislature, undertook a one
27
1253
year study which addressed the following issues: judicial districting;
equalization of case loads; centralization of judicial administration;
judicial compensation; and improving court efficiency. The twelve
member commission held meetings throughout the State of Wyoming
compiling information from the executive, legislative and judicial
branches and also seeking input from the general public.
The committee issued its final report during the 1990 legislative
session. Although most of the reform measures recommended by the
commission in its February 1990 report were not adopted by the
legislature, the commissions efforts did lead to substantial increases
in judicial salaries, which were enacted during the 1991 legislative
session.
28
1254
BL FINANCIAL DATA AND CONFLICT OF INTEREST
1. List sources, amounts and dates of all anticipated receipts from deferred
income arrangements, stock, options, uncompleted contracts and other
future benefits which you expect to derive from previous business
relationships, professional services, firm memberships, former employers,
clients, or customers. Please describe the arrangements you have made to
be compensated in the future for any financial or business interest.
ANSWER:
The only entity with which I have a continuing financial interest is my law
firm. Brown & Drew. The firm participates in the American Bar
Retirement Association's Retirement Plan, administered by the State Street
Bank & Trust of Boston, Plan 001. My retirement accovmt is 100% vested.
Article VIII, §3, of the Brown & Drew Partnership Agreement provides
that a partner who withdraws from the firm is entitled only to that portion
of the annual partnership net income in the year of withdrawal. The
withdrawing partner's fractional share is to be determined as of the date of
withdrawal, with appropriate adjustments and allocations made for fees
not yet received, uncollectible accoimts and expenses inciured. Once the
fractional share is determined, the departing partner is paid that amoimt,
together with the book value of his or her capital account. The executive
committee of the firm can select the method of payment provided that
pa3rment is completed within two years of the date of the partner's
departure. I would request an immediate payment of all cash due me
under the partnership agreement so as to bring to an end all financial ties
with the firm as soon as possible.
2. Explain how you will resolve any potential conflict of interest, including the
procedure you will follow in determining these areas of concern. Identify
the categories of litigation and financial arrangements that are likely to
present potential conflicts-of-interest during your initial service in the
position to which you have been nominated.
ANSWER:
In the event any conflict or potential conflict arises, I would immediately
inform coimsel of the nature of the conflict and take whatever steps are
necessary to resolve the conflict in accordance with the guidelines of the
Code of Judicial Conduct. I currently am not aware of any potential
conflicts of interest.
3. Do you have any plans, commitments, or agreements to pursue outside
employment, with or without compensation, during your service with the
court? If so, explain.
29
1255
ANSWER: No
4. List sources and amount of all income received during the calendar year
preceding your nomination and for the current calendar year, including all
salairies, fees, dividends, interest, gifts, rents, royalties, patents, honoraria,
and other items exceeding $500 or more. (If you prefer to do so, copies of the
financial disclosure report, required by the Ethics in Government Act of
1978, may be substituted here.)
ANSWER: See Financial Disclosure Report attachment.
5. Please complete the attached financial net worth statement in detail (Add
schedules as called for).
ANSWER: See attached asset and liability statement.
6. Have you ever held a position or played a role in a political campaign? If so,
please identify the particulars of the campaign, including the candidate,
dates of the campaign, your title and responsibilities.
ANSWER:
Yes, I have worked in numerous political campaigns as a volunteer,
however, only in the following caimpaigns did I have a formal role to play:
1. Presidential campaign of Governor Terry Sanford (1972 -
Democratic presidential candidate). 1 worked for Governor Sanford's
campaign as an advance man in Iowa, Oklahoma and Texas from the
middle of May 1972 until the end of June. My function was to meet with
delegates and would-be delegates to the National Convention in their home
towns. I also assisted Bob Wise, now congressman from West Virginia in
preparation for Governor Sanford's appearance at the Oklahoma
Democratic Party Convention in Oklahoma City in June, 1972.
2. Co-chair of the Sweetwater County (Wyoming), Carter for
President Campaign Conunittee (1976); and,
Co-chair of the Teno Roncolio (U.S. Congressman) re-election
committee (1976).
As co-chair of the above campaigns in Sweetwater County, Wyoming, I was
responsible for maintaining the campaign office and for running an
aggressive door-to-door campaign for the candidates. I also organized a
telephone calling campaign and arranged rides for the elderly to the poles
on election day.
3. Committee To Elect Mike Sullivan Governor ( 1986)
I was one of four or five individuals charged with the responsibility of
managing Governor Sullivan's first campaign for public office. This task
30
1256
involved fund raising, assisting in the management of the campaign office,
speaking for the candidate when he was unavailable to do so, issuing press
releases, coordinating campaign activities with other candidates for public
office, advising the candidate on certain political issues of significance and
coordinating activities of volunteer workers.
Finally, I served as a member of the Governor-elect's transition team. My
chief function was to review qualifications of applicants for administrative
posts within the new administration and to make recommendations to the
Governor-elect.
4. 1990 Sullivan Re-election Campaign effort.
My role in this campaign was not as extensive as in the 1986 campaign, but
I still assisted the campaign in fund-raising efforts and by speaking on
behalf of the Governor at campaign rallies and before civic organizations. I
also served in an informal capacity to the Governor, offering advice on
political issues of significance to the campaign.
5. 1992 Presidential Campaign
I assisted the Wyoming Clinton Campaign by coordinating an effort to
encourage supporters to write letters to the editors of local newspapers,
responding to Republican attacks and supporting the Clinton platform. I
also served as a spokesperson, along with Bryan Sharratt, on the occasion
of Vice President Quayle's campaign visit to Casper in late October, 1992.
81
1257
m. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar Association's
Code of Professional Responsibility calls for "every lawyer, regardless of
professional prominence or professional workload, to find some time to
participate in serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances and the amount of
time devoted to each.
ANSWER:
I have tried to meet this obligation by my service on the boards of Meals on
Wheels, St. Vincent DePaul Thrift Store, The City of Casper Housing
Advisory Commission and the Central Wyoming Counseling Center. I
attended as many of the meetings of the boards that I could. The Meals on
Wheels and Counseling Center boards met on a monthly basis and I
attended those meetings routinely. Less frequent were the meetings of the
Casper Housing Advisory Commission. That commission met usually
when there was a specific issue to address, such as to make
recommendations to the City Council concerning allocation of federal
funds for various housing projects. The St. Vincent DePaul board meets
infrequently, usually at least twice a year, and I attend those meetings and
assist in establishing policy for the store's operations.
The most significant role I played in the Central Wyoming Counseling
Center board was to assist in the establishment of a low-cost rehabilitation
center for drug emd alcohol abusers.
My service on the Meals on Wheels board required my attendance at the
monthly board meetings as well as my involvement in sub-committee
assignments and fund raising efforts.
In the last five years, I have also represented three individuals on minor
legal matters without charge to them for my services. I have also
expressed a willingness to accept referrals from Legal Aid Services.
The American Bar Association's Commentary to its Code of Judicial
Conduct states that it is inappropriate for a judge to hold membership in
any organization that invidiously discriminates on the basis of race, sex, or
religion. Do you currently belong, or have you belonged, to any organization
which discriminates-through either formal membership requirements or
the practical implementation of membership policies? If so, list, with dates
of membership. What have you done to try to change these policies?
ANSWER:
Until 1991 the Casper Country Club, of which I've been a member since
1989, operated tuider by-laws which did not grant women voting rights as
32
1258
members. A group of members began plans to file suit against the club to
force a change in this policy. I became involved in an effort to persuade the
club's board of directors to support amendments to the by-laws which would
grant women equal rights, to include providing for comparable tee times. I
also enlisted the support of other active members in this effort. One of those
individuals is Ed Boland (3840 Alpine Dr., Casper, WY 82601, Telephone
307/234-4221). At the 1991 annual meeting the voting members
overwhelmingly approved the new by-laws, thus putting an end to the
discriminatory practices.
To my knowledge none of the other organizations with which I am
associated discriminate on the basis of sex, race or religion. At the time I
joined the Casper Country Club I was unaware of the discrimination on the
basis of sex.
3. Is there a selection commission in your jurisdiction to recommend
candidates for nomination to the federal courts? If so, did it recommend
your nomination? Please describe your experience in the entire judicial
selection process, from beginning to end (including the circumstances
which led to your nomination and interviews in which you participated).
ANSWER:
There is no selection commission in this jurisdiction for recommending
candidates. Soon after the election of President Clinton, Governor Sullivan
and Secretary of State Kathy Karpan issued statements encouraging
interested individuals to apply for various posts, including U. S. District
Judge. To my knowledge, a number of lawyers applied for the present
vacancy. While there was no formsd application process, each individual
was encouraged to submit a letter to the Governor and Secretary of State
and attach whatever information they deemed lelevant to their expression
of interest in the appointment. There was no formal interviewing process,
however, I am advised that the Governor did speak with a number of
individuals who expressed interest in the nomination. I also know that
Secretary of State Kathy Karpan spoke with interested individuals on an
informal basis, myself included. The Governor and Secretary of State
consulted with other Democratic party leaders before deciding upon
applicants for U. S. District Judge, U. S. Attorney and U. S. Marshal.
After my name was forwarded to the White House I was interviewed by
lawyers from the Department of Justice and White House. I have also been
investigated by the FBI and ABA. In conjunction with the investigation I
was interviewed by sin FBI agent and an ABA investigator.
4. Has anyone involved in the process of selecting you as a judicial nominee
discussed with you any specific case, legal issue or question in a manner
that could reasonably be interpreted as asking how you would rule on such
case, issue, or question? If so, please explaun fully.
33
1259
ANSWER: No
5. Please discuss your views on the following criticism involving "judicial
activism":
The role of the federal judiciary within the federal government, and within
society, generally, has become the subject of increasing controversy in
recent years. It has become the target of both popular and academic
criticism that alleges that the judicial branch has usurped many of the
prorogations of other branches and levels of government. Some of the
characteristics of this "judicial activism" have been said to include:
a. A tendency by the judiciary toward problem-solution rather
than grievance-resolution;
b. A tendency by the judiciary to employ the individual plaintiff as
a vehicle for the imposition of far-reaching orders extending to
broad classes of individuals;
c. A tendency by the judiciary to impose broad, affirmative duties
upon governments and society;
d. A tendency by the judiciary toward loosening jurisdictional
requirements such as standing and ripeness; and
e. A tendency by the judiciary to impose itself upon other
institutions in the manner of an administrator with
continuing oversight responsibilities.
ANSWER:
In general, I believe that it is the function of a trial judge to apply the law in
accord with legislative intent, and to interpret such law with due regard for
judicial precedent. In my judgment, it is not the role a trial judge to be a
lawmaker.
It must also be recognized that the role of a federal district judge is not
always as simple as applying a rule of law. Often, there are conflicting
rules of law which may or may not apply to a given factual situation.
Sometimes, critics of the federal courts define the legitimate exercise of
judicial discretion as activism when the decision of the court does not suit
them. "Judicial activism" is often in the eyes of the beholder. Yet, judicial
discretion requires restraint. A federal judge must be mindful of the fact
that the doctrine of separation of powers applies to the judiciary as well as
to the other branches of government.
34
1260
FINANCIAL DISCLOSURE REPORT
■■port toqalrad by tk* Itkloa
Katon ket o( 1M«, rab. L. Bo.
101-lt4, ■iilm M. IMf
(S o.t.e.k. ifp. *, s«iei-iu)
1. Mnoa — fortUg (Lan »•, tint, mlttlm laltlal)
Downes, Nllliaa F.
a. Oottrt oz Orffwilsatlfla
U.S. District Court,
District of Wycning
I. Data of Hayui I
5/5/94
«. Tltls (Artlola III jodoM lixllaata xrtlra or
U.S. District Judge
5. aqnrt mm (olMok appnprlata typal
X aolutlni. Dat. 5/5/94
Initial taaaal riul
«. HaiwrHag tarlod
1/1/93 - 5/5/94
T. nnHiMi or OfClaa addzMa
123 West First Street, Suite 800
Casper, WY 82601
1. M tka baala of tho lofozaatloa onotalnail la tkla llaeart. It
la, la mt oplaloa, la eo^llaaea vltk afplleabla Imm tmt
ragiOatlcoa
■mlavlso otflcar SloBatiira
IMPOKIANT NOTESi The insimctlom 4icampanybtgOibfommuMbe/oaowtd.Comittitmjfat^
dbcddtit ^ NONE bodi for nch Mdlao «lMrc jpoo IMTC iko f«}WruM« inf^^
I. POSITIONS. (Reporting imUvMual onty; see pp. 7-8 of Instructions.)
POSITION NAME OF OROANIZATlON/ENnTY
n
NONE (ma nvartabla poaltloaa)
Partner
Law Offices of Brown Drew
II. AGREEMENTS. (Reporting Individual only; see p. 8-9 of Instnictlont.)
DATB PARTIES AND TERMS
n
NONE (So nportabla agraaaaata)
Brown Drew Partnership and William F. Downes as Partner
(See attached copy)
III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 9-12 of Instmctioai.)
DATE SOURCE AND TYPE GROSS INCOME
(Hooofaria only) (yours, not spouse's)
n
NONE lao gaportabla aoa-lavaataaot laeoaa)
Brown Drew - Partner's share of income
^ 124,102
$
1261
FINANCIAL DISCLOSURE REPORT (cont'd)
Naaa of Parson Importing
Downos, William F.
Dat« of Iteport
5/5/94
IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.
(Indudes those to spouse and dependent children; use the parenthetlcals '(S)' mnd '(DC)* to Indicate reportable
retmbursemeuts and gldj received by spouse and dependent children, respectively. See pp.13-15 of Inslnictloas.)
DESCRIPTION
n
SOURCE
NONE (Ho such raportablo rvlaburaaaonta or glfta)
Exempt
V. OTHER GIFTS, (includes those to spouse and dependent children; use the parenthetlcals *(S)' and '(DC)' to
- ■- " — • ■■ 1 del ... - ...
D
Indicate other glRs received by sponse and dependent children, respectively. See pp.15- IC of Instructions.)
SOURCE DESCRIPTION VALUE
NONE (Ho auch raporUbla glfta)
Exempt
VI. LIABILITIES, (includes those of spouse and dependent children; indicate where applicable, person responsible
for UabUity by using the parenthetical '(S)' for separate liability of spouse, '(J)' for Joint liability of reporting
Individual and spouse, and '(DC)' for liability of a dependent child. See pp.16-18 of^Instmctlons.)
n
CREDITOR
NONE (Ho raportabla llabllltlaa)
American Bar Association
DESCRIPTION
Loan from retirement account
VALUE CODE*
VUOI CODISl J - tlS.OOO or iMa K - |l),00i to 190,000 I. - IM.SOl to tlM.OM « • tlOO.OOi t» tUO.IIM
a « 32$0,00]l to 9500,000 0 » $500,001 to $1,000,000 p ■■ Nor* tlUB tlaOOOtOOO
1262
FINANCIAL DISCLOSURE REPORT (cont'd)
HUM of Parson Reporting
Downes, William F.
D«t« of R«port
5/5/94
VII. INVESTMENTS and TRUSTS -- income, value,
■nd dependent childrm; see pp. 18-27 or InstnicUons.)
transactions. (Inclodes Ummc or spouse
p«MriptJLon of A«»*t«
(iDclodlno tramt a«*«t«)
Xpdlo»t«, «h«r« aDplic*bl», omfr Of
tM ■■••( by avlnd U* par«ct>t«tlc«I
'»?iH"'
c.
groaa vala«
«t end of
D.
Tr«aM0tlons daring r«portJlo« parlod
(1)
(2)
'ST;
'CI.?'
(it
(it
To-w)
bJiiih,
>( not «««apt troa dlMloou* |
I>*y
(4i
g^
NONE no raporubl*
Inrn— » mm—tM^ or
1
Law Office of Brovm Drew Pts
G
J
u
Exemp
;
ABA Retirement Plan
None
M
T
Exemp
3
Public Svc. Co. of Colo. (J)
A
Div
J
T
Exemp
.
4
Great Hall Rocky Mtn. TR (S)
None
J
T
__._
Exemp
_- —
9
J
T
Exemp
C
Great Hall Rocky Mtn. TR
None
J
T
Exenp
7
None
J
T
_„
Exemp
.
•
Great Hall Fund
None
J
T
Exemp
;
«
PEPSICO, Inc.
None
J
T
Exemp
10
Goldman Sachs Equity
None
J
T
Exemp
■
11
u
11
14
I>
1*
IT
IS
It
20
1 i.nMiWili CMMi »-tt,«M m urn >^i,oei to u.soo S3*lJ»L!"J»S
e »y,«W «• t**i^ 1
» niLlaJ}-*-™ — M»;eM a iSil'" mu'M S HsImT t-IM:*H
tm nc
laa.Mt
H <■ «2««<«<n>
(•M eol. ai ^ZS vu» »-ot»« vHMUaM
1*«
1
1263
FINANCIAL DISCLOSURE REPORT (cont'd)
Nasn of Perion Roportlng
Downes, William F.
Data of Rnport
5/5/94
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (indicate part of Report)
IX. CERTIFICATION.
In compliance with the provisions of 28 U.S.C. § 455 and of Advisory Opinion No. 57 of the Advisory Committee on
Judicial Activities, and to the best of my knowledge at the lime after reasonable inquiry, I did not perform any adjudicatory
function in any UtigaUon during the period covered by this report in which I, my spouse, or my minor or dependent children
had a Gnancial interest, as defined in Canon 3C(3)(c), in the outcome of such litiption.
I certify that all information given above (including information pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my knowledge and beUef, and that any information not reported was
withheld because it met applicable statutory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.CA. app. 7, § 501 eL seq., 5 U.S.C § 7353 and Judicial Conference
regulations.
Date
3/^5^^
Signature
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.CA. APP. 6, S 104, AND 18 U.S.C § 1001.)
FILINO INSTRUCTIONS:
Mail signed original and 3 additional copies to:
Judicial Ethics Committee
AdministrativB OfiSce of the
United States Courts
Washington. DC 20544
1264
FIRST AMENDED
AND RESTATED
PARTNERSHIP AGREEMENT
OF BROWN & DREW
Dated as of January 1, 1991
1265
FIRST AMENDED AND RESTATED
PARTNERSHIP AGREEMENT
OF BROWN & DREW
TABLE OF CONIENTS
This Table of Contents is not part of the First Amended and Restated
Partnership Agreement of Brown & Drew to which it is attached but is
inserted for convenience only.
Page
ARTICLE I
FORMATION OF PARTNERSHIP
Section 1. Name
Section 2. Principal Place of Business.
Sections. Term of Partnership
Section 4. Additional Partners
ARTICLE II
PURPOSES AND AUTHORITY OF THE PARTNERSHIP 2
Section 1. Purpose and Conduct of Partnership 2
Section 2. General Authority 2
ARTICLE III
CAPITAL ACCOUNTS, ALLOCATION OF PARTNERSHIP
INCOME, DRAWS, ACCOUNTING, AND PARTNER BENEFITS 2
Section 1. Capital Accounts 2
1.1. Contributions to Capital 2
1.2. Determination of Partnership
Net Income 2
1.3. Allocation of Partnership Net Income 3
i. Income Generation Units 3
ii. Longevity Units 3
iii. Discretionary Units 4
1266
Page
1.4 Distribution of Partnership Net Income 5
1.5. Partner Draws 5
Section 2. Accounting Method 6
Sections. Year End 6
Section 4. Retirement, Death, and Disability 6
Section 5. Maximum Retirement, Death, and
Disability Payments 7
Section 6. Sabbatical Leave 7
ARTICLE IV
OF PARTNERSHIP 8
Annual Meeting 8
Regular Meetings 8
Special Meetings 8
Quorum 8
Proxies 9
Voting 9
Executive Committee 9
Election, Tenure, Resignation, and
Removal of Executive Committee 9
Chairman of Executive Committee 10
Duties of Executive Committee 10
Compensation Committee 10
Appointment of Management 11
Partnership Funds H
Restrictions on Partners 11
ADMINISTRATION
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10.
Section 11.
Section 12.
Section 13.
Section 14.
-n-
1267
ARTICLE V
DUTIES AND RESPONSIBILITIES OF ALL PARTNERS 12
Section 1. Duties and Responsibilities 12
SecUon 2. Ethical Standards 12
Section 3. Working Facility 12
ARTICLE VI
DISSOLUTION AND LIQUIDATION 12
Section 1. Voluntary Dissolution 12
Section 2. Gains or Losses in Winding Up 13
ARTICLE VII
GENERAL RESTRICTIONS ON TRANSFER
OF PARTNERSHIP INTEREST 13
ARTICLE VIII
WITHDRAWAL OR DISMISSAL OF PARTNER 14
Section 1. Withdrawal of Partner 14
Section 2. Dismissal of Partner 14
Section 3. Distribution of Partnership Income
to Departing Partners 14
ARTICLE IX
TERMINATION 14
ARTICLE X
AMENDMENT 15
-m-
1268
ARTICLE XI
AMENDMENT AND RESTATEMENT
OF PARTNERSHIP AGREEMENT 15
ARTICLE XII
GENERAL PROVISIONS 15
-IV-
1269
FIRST AiMENDED AND RESTATED
PARTNERSHIP AGREEMENT OF BROWN & DREW
THIS FIRST AMENDED AND RESTATED PARTNERSHIP AGREE-
MENT is made and entered into as of the 1st day of January, 1991, by and
among Morris R. Massey, B. J. Baker, Harry B. Durham, III, Craig New-
man, William F. Downcs, W. Thomas Sullins, II. Donn J. McCall, Thomas
F. Reese, J. Kenneth Barbe, and Jeffrey C. BrinkerhofT (collectively, the
"Partners") to amend and restate an existing Partnership Agreement dated
as of January 1, 1987 (the "Partnership Agreement"). Each of the Partners
are parties to and have accepted the terms and conditions of the Partner-
ship Agreement.
All references in this Agreement to the term "Partners" shall collec-
tively refer to and mean the Partners who are parties to this Agreement
and any attorneys who may become partners from time to time pursuant to
Section 4 of ARTICLE I. All references in this Agreement to the term
"Partner" shall refer to and mean any attorney who is or becomes a partner
under this Agreement.
ARTICLE I
FORMATION OF PARTNERSHIP
Section 1. Name. The name of the partnership shall be Brown &
Drew.
Section 2. Principal Place of Business. The principal place of
business of the partnership, subject to change from time to time by the
Partners, shall be 123 West First Street, Suite 800, Casper, Wyoming 82601.
Sections. Term of Partnership. The partnership has previously
been formed pursuant to oral agreement, as restated, ratified, and con-
firmed by the Partnership Agreement, and shall continue until dissolved by
act of the Partners, by operation of law, or as otherwise provided in this
Agreement.
Section 4. Additional Partners. Attorneys may be admitted as
Partners from time to time by the consent of two-thirds (2/3) of the then
Partners and upon the written agreement of such additional Partner or
Partners to accept all terms and conditions of this Agreement, as the same
may be modified and amended from time to time. Every Partner shall be a
person duly licensed by the Supreme Court of the State of Wyoming to prac-
tice law in the State of Wyoming.
' 1270
ARTICLE II
I'UIIPOSES AND AUTHORnr OF THE PARTNERSHIP
Section 1. Purpose and Conduct of Partnership. The purpose of the
partnership sliall be to conduct the practice of law through persons licensed
by the Supreme Court of the State of Wyoming to practice law in the State of
Wyoming. Such persons shall practice the profession of law in accordance
with all rules for professional conduct promulgated by the State of Wyoming
and the Supreme Court of the State of Wyoming. The partnership shall at
all times comply with standards of professional conduct an ! ethics pro-
mulgated by the State of Wyoming or the Supreme Court of the State of
Wyoming, and with any other ethical standard or requirement established
by any professional regulatory group having jurisdiction.
Section 2. General Authority. The partnership shall have the au-
thority to borrow and loan money, as well as the authority to purchase,
lease, or in any manner hold, own, improve, develop, sell, convey, lease, or
mortgage real or personal property, or any interest therein.
ARTICLE III
CAPITAL ACCOUNTS, ALLOCATION OF PARTNERSHIP
INCOME, DRAWS, ACCOUNTING, AND PARTNER BENEFITS
Section 1. Capital Accounts. A separate capital account shall be
maintained for each Partner, which shall be adjusted annually to reflect
capital contributions by each Partner, income allocated to each Partner,
and draws taken by each Partner.
1.1. Contributions to CapitaL The Partners recognize that it
may be necessary for each of them to contribute additional capital to
fund operations of the partnership from time to. time. Such contribu-
tions may consist of a contribution of a Partner's funds to the part-
nership, but will more typically consist of funds reserved by the part-
nership which the Partners would otherwise be entitled to draw. The
amount of required capital contributions shall be determined on an
annual basis and shall be shared equally among the Partners. A
Partner's capital contribution shall be credited to his capital account.
1.2. Determination of Partnership Net Income. The net in-
come of the partnership ("Partnership Net Income") shall be deter-
mined on an annual basis by the accounting method adopted by the
partnership. Partnership Net Income shall be allocated to each Part-
-2-
J
1271
ner, and credited to his or her capital account, according to the
method prescribed by Section 1.3 of this ARTICLE III.
1.3. Allocation of Partnership Net Income. The allocation of
the annual Partnership Net Income shall be determined on the basis
of income generation, longevity, and discretionary units assigned to
each Partner. A final allocation shall be made each year after the
close of business for the year. The annual Partnership Net Income
shall be allocated among the Partners as follows:
i. Income Generation Units. Seventy percent (70%)
of the Partnership Net Income shall be allocated on the basis of the
value of the gross legal fees billed on behalf of each Partner during
the year. The amount of the Partnership Net Income allocable to
each Partner in respect of his or her income generation unit shall be
determined by dividing the collectible, gross legal fees billed by that
Partner by the total, collectible legal fees billed by all Partners, and
multiplying the quotient by seventy percent (70%) of the Partnership
Net Income. The amount of the legal fees to be credited to the account
of each Partner shall be determined after a review by the Compensa-
tion Committee and the affected Partner of the collectibility of the
gross amount of legal fees billed on his or her behalf during the year.
In such review, appropriate consideration shall be given to the gross
amount of legal fees received on behalf of each Partner during the
year.
For purposes of this Section 1.3.i., legal fees payable for
services in contingent fee and probate matters and legal fees collected
for services previously determined by the Compensation Committee
to be uncollectible shall be deemed to be billed upon receipt of the legal
fees for such services, and the uncollected legal fees attributable to
each Partner for the previous year shall be deducted from his or her
collectible, gross fees for the current year to the extent such uncol-
lected fees were included in such Partner's income generation unit
for such previous year.
ii. Longevity Units. Ten percent (10%) of the Part-
nership Net Income shall be allocated to each partner on the basis of
the longevity units attributable to each Partner at the beginning of the
year. Subject to the provisions of this Section 1.3.ii., the amount of the
Partnership Net Income allocable to each Partner in respect of lon-
gevity units shall be determined by dividing the longevity units at-
tributable to each Partner by the total longevity units attributable to
all Partners, and multiplying the quotient by ten percent (10%) of the
Partnership Net Income. The number of longevity units attributable
to each Partner, as of January 1, 1991, shall be as follows:
-3-
1272
Morris R. Massey 30 Units
B. J. Baker 28 Units
Harry B. Durham, III 18 Units
Craig Newman 13 Units
William F. Downes 12 Units
W. Thomas Sullins, II 12 Units
Donn J. McCall 11 Units
Thomas F. Reeee 8 Units
J. Kenneth Barbe 7 Units
Jeffrey C. BrinkerhofT 6 Units
Upon admission of any new Partner to the partnership,
he or she shall be credited wath five (5) longevity units. The number
of longevity units attributable to each Partner shall be increased by
one (1) unit for each year of service to the partnership subsequent to
the calendar year in which this Agreement becomes effective, pro-
vided that no Partner shall be credited with more than thirty (30)
longevity units, notwithstanding his or her actual tenure with the
partnership.
If (a) the gross amount of collectible legal fees billed on
behalf of a Partner in any year should fail to total at least $110,000 (or
such other amount as the partnership may from time to time deter-
mine) and (b) the Compensation Committee should find insufficient
mitigating circumstances for the failure of that Partner to satisfy
such requirement, then the distributable income attributable to that
Partner's longevity units shall be forfeited and reduced dollar for dol-
lar to the extent of the shortfall. The amount of any distributable in-
come that is forfeited in any year under this Section 1.3.ii. shall be
added to the amount of Partnership Net Income allocable under Sec-
tion 1.3. iii. of this ARTICLE III. If the gross amount of collectible le-
gal fees billed on behalf of a Partner should fail to total at least
$110,000 per year (or such other amount as the partnership may from
time to time determine) for three (3) consecutive years without a con-
comitant finding of sufficient mitigating circumstances, the affected
Partner shall immediately forfeit his status as a Partner of the part-
nership, and he or she shall be deemed to be retired from the part-
nership subject to the provisions of Section 4 of this ARTICLE III.
iii. Discretionary Units. Twenty percent (20%) of the
Partnership Net Income shall be allocated by the Compensation
Committee to deserving Partners for committee participation, coop-
eration with administrative policies, practice development, and meri-
torious service to the partnership and the legal profession during the
year. The final determination of the amount of the Partnership Net
Income allocable to each Partner in respect of discretionary units
shall be made after the Compensation Committee has received input
1273
from all Partners. The Compensation Committee shall give written
notice of its decision on the allocation of discretionary units to all
partners at least fifteen (15) days before the date set for the allocation
of the Partnership Net Income. Such written notice shall include the
name of each recipient of discretionary units, the amount of the dis-
cretionary units allocated to each recipient, and a brief statement
summarizing the activities of each recipient which support the rec-
ommendation. Absent written objection by at least one-third (1/3) of
all Partners, submitted to the Executive Committee within five (5)
business days from the date of the written notice from the Compensa-
tion Committee, the recommendations of the Compensation Commit-
tee shall be final.
If the requisite number of Partners timely file a written
objection to the recommendation of the Compensation Committee, the
Executive Committee shall then convene a meeting of the partner-
ship to consider and vote upon the recommendation and the objec-
tion. The decision of the majority of all Partners voting at the meet-
ing shall be final.
1.4 Distribution of Partnership Net Income. Afler final ap-
proval is given to the allocation of the annual Partnership Net In-
come, the allocation to each Partner shall be credited to his or her
capital account. The Executive Committee shall distribute the
amount of the Partnership Net Income allocable to each Partner, less
his or her share of (a) the capital contributions required by Section 1.1
of this ARTICLE III and (b) any adjustments determined by the
partnership's accountants. Such distributions shall be made to all
Partners from available funds.
1.5. Partner Draws. During each year, each Partner shall
be entitled to monthly and quarterly draws in such amounts as are
established by the Executive Committee. Prior to the establishment of
the monthly and quarterly draws for all Partners, the Executive
Committee shall prepare an operating and capital budget for the
year. After preparation of the operating and capital budget and the
associated review of the financial condition of the partnership, the
Executive Committee shall make a determination of what percentage
of the budgeted net income of the partnership shall be distributed to
the Partners in the form of monthly and quarterly draws. The dis-
tributable amount of monthly and quarterly draws shall be estab-
lished at the beginning of each calendar or fiscal year of the partner-
ship and shall be allocated to each Partner as follows:
(a) Seventy percent (70%) shall be allocated on the ba-
sis of the ratio of each Partner's projected legal
fees to the total of legal fees projected by all Part-
s'
1274
ners. Final determination of projected fees for the
individual Partners shall be made by the Execu-
tive Committee.
(b) Ten percent (10%) shall be allocated on the basis of
the ratio of tlie longevity units attributable to each
Partner to the total longevity units attributable to
all Partners.
(c) Twenty percent (20%) shall be allocated on a dis-
cretionary basis as determined by the Compensa-
tion Committee according to the method pre-
scribed by Section 1.3.iii. of this ARTICLE III.
The determination of whether a particular monthly or quar-
terly draw is payable to all or any of the Partners shall be the respon-
sibility of the Executive Committee. Each Partner's draws are sub-
ject to reduction by the Executive Committee if, in the opinion of the
Executive Committee, the anticipated total allocation of profits to that
Partner for the year will not equal or exceed the scheduled monthly
and quarterly draws for that Partner. The draws distributed to each
Partner shall be debited against his or her capital account.
Section 2. Accounting Method. The partnership shall keep its ac-
counting records and shall report its income for income tax purposes on the
cash or accrual method of accounting as the Partners shall determine from
time to time.
Sections. Year End. The fiscal and the taxable year of the part-
nership shall be such fiscal or calendar year as is determined by the part-
ners.
Section 4. Retirement, Death, and Disability. Any Partner who
has at least twenty (20) longevity units and who will not be engaged in the
practice of law in competition with the partnership may retire from the
partnership. For a period equal to one (1) year for every seven and one-half
(7-1/2) longevity units then held by the retiring Partner, but for not longer
than four (4) years (including the year of retirement), the retiring Partner
shall be entitled to an annual payment of an amount which shall be deter-
mined by dividing the Partner's longevity units by the total of all of the
Partners' longevity and income generation units, and multiplying the quo-
tient by the Partnership Net Income for the year. A retiring Partner shall,
in addition, be entitled to an annual payment, for two (2) years afler the ef-
fective date of his or her retirement, of an amount which shall be deter-
mined by dividing the retiring Partner's income generation units (which
are attributable to legal fees not billed or accrued on the effective date of re-
tirement but which are billed, accrued, and received in the two-year period)
1275
by the total of all of the Partners' income generation and longevity units,
and multiplying the quotient by the Partnership Net Income for the year.
For purposes of the calculations made under this Section 4, one (1) income
generation unit shall be equal to $2,000 in legal fees, rounded up or down to
the nearest whole unit.
If a Partner suffers a disability which, in the opinion of the Executive
Committee, renders the Partner permanently unable to practice law, the
disabled Partner shall be entitled to receive the same benefits as would have
been payable had the disabled Partner voluntarily retired.
The partnership shall pay to the estate or the designated beneficiaries
or devisees of a deceased Partner, as the purchase price for the deceased
Partner's interest in the partnership, the same amounts as would have
been payable to a voluntarily retiring Partner or the unpaid portion of such
amounts if death occurs after retirement or a determination of permanent
disability. The representatives of the estate of a deceased Partner shall have
the right to examine the books and records of the partnership and to make
reasonable inquiries into the work in process as of the date of death, pro-
vided such inquiry does not offend professional ethics. The estate of a de-
ceased Partner shall not be entitled to any of the records or files of the part-
nership, except records and files relating to the personal matters of such
Partner. The death of any Partner shall have no effect upon the continu-
ance of the partnership.
With the approval of the partnership, a Partner attaining the age of
sixty-five (65) who has not yet retired may continue the practice of law as an
active general Partner pursuant to the provisions of this Agreement or in
the status as "of counsel" to the partnership under such arrangements as
shall be mutually satisfactory to the Partner and the partnership.
Section 5. Maximum Retirement, Death, and Disability Payments.
The payments due under Section 4 of ARTICLE III with respect to retire-
ment, death, or disability of all eligible Partners shall in no event exceed an
aggregate of ten percent (10%) of the annual Partnership Net Income. In
the event the total amount of such payments would exceed ten percent (10%)
of the Partnership Net Income in a particular year, the excess amount at-
tributable to each Partner entitled to receive the same shall be calculated,
and the payout extended into succeeding years until the excess amounts
due each Partner shall be paid in full.
Section 6. Sabbatical Leave. With approval of the Executive Com-
mittee, each Partner shall be entitled and encouraged to take a noncumula-
tive sabbatical leave of three (3) months for each ten (10) years of partner-
ship service. A Partner electing to take a sabbatical shall be entitled to re-
ceive a guaranteed monthly payment attributable to general firm expense of
$2,000 per month.
1276
ARTICLE IV
ADNUNISTRATION OF PARTNERSHIP
Section 1. Annual Meeting. The annual meeting of the partner-
ship shall be held during the month of January of each year, beginning
with the year 1992, for the purpose of the election of the Executive Commit-
tee in the manner set forth in Section 8 of this ARTICLE IV, the election of
the at large members of the Compensation Committee in the manner set
forth in Section 11 of this ARTICLE IV, the approval of the operating and
capital budget of the partnership for the ensuing year, and the transaction
of such other business as may come before the meeting. If the election of
the members of the Executive Committee and of the Compensation Commit-
tee shall not be held on the day designated herein for any annual meeting of
the Partners or at any adjournment thereof, the Executive Committee shall
cause the election to be held at a special meeting of the Partners to be held
as soon thereafter as practicable.
Section 2. Regular Meetings. A regular meeting of the Partners
shall be held at least quarterly at such time and place as the Executive
Committee may determine. Notice of each quarterly meeting shall be given
to each Partner in writing at least five (5) working days before the date of the
meeting. The notice shall include an agenda for the meeting which shall
be prepared by the Executive Committee.
Sections. Special Meetings. Special meetings of the Partners may
be called by or at the request of the Executive Committee or any three (3)
Partners. The person or persons authorized to call special meetings of the
Partners may fix the time and place for holding any special meeting of the
Partners called by them. Notice of any special meeting shall be given to
each Partner in writing at least three (3) working days before the date of the
meeting. The notice shall include an agenda for the meeting which shall
be prepared by the Executive Committee.
Section 4. Quorum. A majority of the number of Partners shall
constitute a quorum for the transaction of business at any meeting of the
partnership; provided, however, if the agenda or subject of the meeting, as
determined by this Agreement, shall require the afiirmative vote of at least
two-thirds (2/3) of the Partners, then a quorum shall exist if two-thirds (2/3)
of the Partners are in attendance either in person or by proxy.
In the absence of a quorum, any Partner entitled to preside at the
meeting or a majority of those Partners present, in person or by proxy, may
adjourn the meeting from time to time without notice other than an-
nouncement at the meeting. At such adjourned meeting at which a quo-
1277
rum shall be present, any business may be transacted which might have
been transacted at the meeting as originally notified.
Sections. Proxies. A proxy, to be valid, must be executed in writ-
ing by the Partner. The proxy shall be valid for a period of one (1) month fol-
lowing the partnership meeting at which it is utilized. No Partner ehall be
allowed to vote at a meeting of the partnership by proxy unless his or her
absence from the meeting has been excused by the Executive Committee.
Section & Voting. Each Partner shall have an equal vote in the
management of the partnership. A majority vote of those present shall de-
cide any matter which does not affect capitalization, borrowing, the admis-
sion of new partners, the removal of a member of the Executive Committee,
the dismissal of a Partner, or the amendment, alteration, or revocation of
this Agreement. A two-thirds (2/3) vote of all Partners shall decide any
management decision which affects capitalization, borrowing, the admis-
sion of new Partners, the removal of a member of the Executive Comniittee,
the dismissal of a Partner, or the amendment, alteration, or revocation of
this Agreement.
Section?. Executive Committee. The affairs of the partnership
shall be managed by the Executive Committee; however, the Executive
Committee shall have authority to act only within the terms of the partner-
ship's yeariy budget determined by all of the Partners. All items not within
the budget shall be submitted to a vote of the Partners. The Executive Com-
mittee shall be elected by a vote of the Partners. The Executive Committee
shall consist of three (3) Partners who shall be divided into three (3) classes
in respect of term of office. Except as otherwise provided in Section 8 of this
ARTICLE rV, each member of the Executive Committee shall serve a stag-
gered term of three (3) years. There shall be no limitation on the number of
terms that a member of the Executive Committee may serve.
Section 8, Election, Tenure, Resignation, and Removal of Executive
Committee. Commencing with the first annual meeting of the Partners to
be held after the adoption of this Agreement, the members of the Executive
Committee shall be elected as follows:
(a) The member of the first class shall be elected and
serve for a term of one (1) year.
(b) The member of the second class shall be elected
and serve for a term of two (2) years.
(c) The member of the third class shall be elected and
serve for a term of three (3) years.
1278
At each annual meeting of the Partners following the first annual
meeting held after the adoption of this Agreement, one (1) class of the Exec-
utive Committee shall be elected to serve for a term of three (3) years next
following such annual meeting and until his or her successor shall be
elected and shall qualify. The current members of the Executive Committee
shall continue to serve until their successors shall be elected and shall
qualify.
Each member of the Executive Committee shall at all times be subject
to removal, with or without cause, by the affirmative vote of two-thirds (2/3)
of the Partners. Any member of the Executive Committee may resign at
any time by giving written notice to the Executive Committee. Such resig-
nation shall take effect on the date of the receipt of such notice, or at a later
time as shall be specified in such notice of resignation. Unless the notice of
resignation specifies otherwise, the acceptance of the resignation shall not
be necessary to make it effective. When a vacancy occurs on the Executive
Committee by reason of death, resignation, or otherwise, it shall be filled by
the affirmative vote of the partnership for the unexpired period of time re-
maining for such office.
Section 9. Chairman of Executive Committee. The Chairman of
the Executive Committee, who shall be selected by the members of the Ex-
ecutive Committee, shall be the chief executive officer of the partnership,
shall preside at all meetings of the Partners, and shall see that all orders
and resolutions of the Partners are carried into effect. In addition, the
Chairman of the Executive Committee shall preside at all meetings of the
Executive Committee.
Section 10. Duties of Executive Committee. The Executive Commit-
tee shall be responsible to the partnership for the sound administration of
the firm. The Executive Committee shall implement all policies of the firm
as, from time to time, the Partners may enact by resolution.
The Executive Committee shall be responsible for the preparation of
the operating and capital budget of the partnership, the payment of operat-
ing expenses, the collection of fees, and the supervision of personnel.
The Executive Committee shall execute bonds, mortgages, and other
contracts, except where required or permitted by law to be otherwise signed
and executed, and except where the signing and execution thereof shall be
expressly delegated by the Partners to some other member of the Executive
Committee or Partner. All bonds, mortgages, leases, and contracts exe-
cuted for the benefit of the partnership shall be executed by at least two (2) of
the three (3) members of the Executive Committee.
Section 11. Compensation Committee. The Compensation Commit-
tee shall be established as a standing committee of the partnership and
-10-
1279
shall be responsible for the allocation of the annual Partnership Net In-
come to Partners in accordance with the provisions of ARTICLE III and for
the performance of such other duties specified in that Article.
The Compensation Committee shall consist of five (5) Partners, three
(3) of whom shall be the members of the Executive Committee and two (2) of
whom shall be at large members elected by the Partners. Each at large
member shall serve a term of one (1) year. There shall be no limitation on
the number of terms that an at large member of the Compensation Com-
mittee may serve.
The initial at large members of the Compensation Committee shall
be elected at a special meeting of the partnership to be held after the adop-
tion of this Agreement. The at large members elected to the Compensation
Committee shall serve in their official capacities until the next annual
meeting of the Partners and until their respective successors are elected
and shall qualify.
Section 12. Appointment of Management. The Executive Commit-
tee may appoint such other committees as it deems necessary.
Section 13. Partnership Funds. All funds of the partnership shall
be deposited in the partnership's name in such bank account or accounts as
shall be designated in writing by the Partners. All withdrawals from such
account or accounts shall be made upon such signatures as the Executive
Committee may designate in writing.
Section 14. Restrictions on Partners. No Partner, other than the
Executive Committee acting in the ordinary course of partnership business,
may without the written consent of the other Partners: (a) Borrow or lend
money on behalf of the partnership (other than costs advanced pursuant to
guidelines adopted by the Executive Committee); (b) Assign, transfer,
pledge, compromise, or release any claim of the partnership for debts due to
the partnership, except upon payment in full; (c) Make, execute, or deliver
any assignment for the benefit of creditors, confession of judgment, petition
for bankruptcy or other reorganization, mortgage or deed of trust, deed,
guaranty, bond, or contract for sale of all or substantially all of the property
of the partnership, including its good will; (d) Lease or mortgage any part-
nership real or personal property, or any interest therein, or enter into any
contract for such purpose; (e) Cause the partnership to become a surety or
guarantor of, or an accommodation party to, any obligation; or (f) Engage in
any act which would make it impossible to carry on the ordinary business of
the partnership.
■11;
1280
ARTICLE V
DUTIES AND RESPONSroiLITIES OF ALL PAllTNERS
Section 1. Duties and Responsibilities. Each Partner is a member
of the partnership in order to practice the profession of law on behalf of the
partnership and agrees to devote substantially all of his or her time and en-
ergy to such practice. During the term of the partnership, each Partner
agrees that he or she shall not, without the written consent of the Executive
Committee:
(a) Subject to the single exception noted below, render
professional services to or for any person, part-
nership, firm, corporation, or other organization
for compensation, except as a Partner of the part-
nership. Each Partner, however, shall be autho-
rized, subject to the prior consent and approval of
the partnership, to serve and receive compensa-
tion for service as members of corporate boards of
directors if time demands do not substantially im-
pact upon the time available for partnership re-
quirements.
(b) Engage in any activity that competes with the in-
terests of the partnership, whether the partner is
acting alone or as an ofTicer, director, employee,
shareholder, partner, or fiduciary of another en-
tity.
Section 2. Ethical Standards. The Partners recognize that profes-
sional, regulatory, and advisory groups and bodies may from time to time
establish ethical standards and requirements writh regard to the practice of
the legal profession. All restrictions contained herein with respect to the
duties . :id obligations of the Partners shall be subject to such standards
and requirements of such groups and bodies.
Sections. Working Facility. Each Partner shall be furnished with
facilities and services suitable to his position and adequate for the perfor-
mance of the duties required by this Agreement.
ARTICLE VI
DISSOLUTION AND LIQUIDATION
Section 1. Voluntary Dissolution. The partnership may be dis-
solved upon the written consent of all of the Partners. Upon any voluntary
-12-
1281
dissolution of the partnership, the partnership shall immediately com-
mence to wind up its affairs. The Partners shall continue to share profits
and losses during the liquidation in the same proportion as before dissolu-
tion. The proceeds from liquidation of partnersliip assets shall be applied as
follows:
First: To pay or make provision for all debts of the part-
nership, other than to Partners.
gecond: To pay or make provision for all debts of the
partnership owed to the Partners, including retirement
benefits to deceased or retired Partners.
Third: To pay the Partners for the balance of any unpaid
compensation.
fourth: The remainder, if any, to be divided among, and
paid to, the Partners in accordance with their propor-
tionate share of profits and losses, determined on the ba-
sis provided in ARTICLE III.
Section 2. Gains or Losses in Winding Up. Any gain or loss on
disposition of partnership property in the process of liquidation shall be
credited and charged to Partners on the basis provided in ARTICLE III
(determined as of the year of dissolution). The value of any property not
disposed of in the process of liquidation shall be determined by agreement of
a majority of the Partners. Such property shall then be distributed in time
to the Partners based upon the agreed value on the basis provided in ARTI-
CLE III.
ARTICLE VII
GENERAL RESTRICTIONS ON TRANSFER
OF PARTNERSHIP INTEREST
At all times during the term of this Agreement, no Partner shall di-
rectly or indirectly transfer, sell, encumber, or otherwise deal with, or dis-
pose of, all or any part of the partnership interest now owned or hereafter
acquired by him or her without the prior written consent of all of the Part-
ners.
I
-13-
1282
ARTICLE VIII
WrniDRAWAL OR DISMISSAL OF PARTNER
Section 1. Withdrawal of Partner. Should a Partner, not eligible to
retire under Section 8 of ARTICLE III desire to withdraw as a partner in
the partnership, such Partner shall immediately serve written notice of his
or her intention to withdraw to the Executive Committee. Such notice shall
be served at least three (3) months prior to the effective date of such Part-
ner's withdrawal. The withdrawal of any Partner shall have no effect upon
the continuance of the partnership.
Section 2. Dismissal of Partner. A Partner shall be subject to dis-
missal from the partnership upon the vote of two-thirds (2/3) of the Part-
ners.
Section 3. Distribution of Partnership Income to Departing Part-
ners. A Partner who has withdrawn or has been dismissed from the part-
nership under this ARTICLE VIII shall be entitled only to that portion of
the annual Partnership Net Income in the year of withdrawal or dismissal
as the fractional share determined under ARTICLE III entitles said part-
ner. The withdrawing or dismissed Partner's fractional share shall be de-
termined as of the date of withdrawal or dismissal with appropriate ad-
justments and allocations made for fees not yet received, uncollectible ac-
counts, and expenses incurred, and such departing Partner shall be paid
such amounts, together with the book value of his or her capital account,
over a period selected by the Executive Committee not to exceed two (2)
years.
ARTICLE IX
TERMINATION
This Agreement shall terminate upon the occurrence of any of the
following events:
(a) The written agreement of the Partners to that ef-
fect;
(b) The death of all Partners within any period of
thirty (30) days;
(c) If one Partner becomes the owner of the entire
partnership;
-14-
1283
(d) The bankruptcy or insolvency of the partnership;
or
(e) The dissolution or termination of the partnership
for whatever reason.
ARTICLE X
AMENDMENT
This Agreement may be amended, altered, or revoked at any time, in
whole or in part, by the vote of two-thirds (2/3) of the Partners at any regular
or special meeting of the partnership, provided that the Partners shall be
notified in writing of the proposed alteration, amendment, or revocation of
this Agreement before any action can be taken.
ARTICLE XI
AMENDMENT AND RESTATEMENT
OF PARTNERSHIP AGREEMENT
This Agreement is an amendment, modification, and restatement of
the Partnership Agreement, and the Partnership Agreement, as amended,
modified, and restated by this Agreement, is hereby ratified and confirmed
by the parties hereto in all respects.
ARTICLE XII
GENERAL PROVISIONS
This Agreement: (a) Contains the entire agreement and understand-
ing between the parties hereto with respect to the subject matter hereof and
supersedes all other prior agreements, consents, and understandings re-
lating to such subject matter; (b) Except as provided in ARTICLE X, may
not be amended, changed, waived, modified, or terminated orally, but only
by an instrument in writing signed by all Partners; (c) Shall be governed by,
and construed and interpreted in accordance with, the laws of the State of
Wyoming; and (d) Shall be binding upon and shall inure to the benefit of the
Partners, and their respective heirs, personal representatives, administra-
tors, successors, and permitted assigns.
-15-
1284
IN WITNESS WHEREOF, the parties hereto have executed and deliv-
ered this Agreement on the dates set forth beside their respective signa-
tures to be efTcctive for all purposes as of the 1st day of January, 1991.
Morris R. Massey /O^ Date
A £/p/ff
Date
,/fAA/ii^B^ l/^^/^ff
Harry B ETurhani, III Date
Craig Nev(^an ~^ Da
'^\zn\\
William F. Downes Date
W. Thomas Sullins, II Date
Donn J. iV^Call Date
Thomas F. Reese Date
H^
-16-
1285
1^^
'^^/9/
%
-17-
1286
HNANOAL STATCMENT
NET WORTH
May 5, 1994
Ptovide • complete, cuireni /Ini/iclal net wonh sutcmeni which iicmius In detail
•11 kjsr.u (Includbg buil: accounts, real eiuie, securidei, trutu, investmenu, &nd other flna/icial
hotdiDjt) all liibiliiies (locludlflg debts, monjases, loans, tad other rmancUl oblitationi) of
youiTclf, your spouse, and other Irrunedjaie members, of your household.
ASSETS
UASiuras
Cuh OB lu\i uii in 6>n)u
5,
?6g
Ketu p<)^k lobwib-Maua^ypqf)
4,
141
U.S. CoTUBSxni foiMa-tii
kchadul*
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MBNA
4,
069
Lined Mcuria'cj-tdd ichcdulc
17,
260
N»lci ^yiVb 10 rtluivw
-0-
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-0-
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If
270
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♦ABA LOAN TO SELF attach
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99,
800
1
KtiJ uuu e«n(J«>dd icjic^lt
((Personal residence only)--
185,
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Chud monmu and other li«ru pty>
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-0-
OOxr dcbu-ltcmlu:
H A\)toi 4Ad oihcf penoo*; propcny
68,
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MAZDA CREDIT (Lease)
10,
?37
1 Cuh vtlva-U/e iniwwiu
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31,
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retirement acct. )
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1287
State Street
AMERIUN BAR ASSOCIATION MEMBERS RETIREMENT PROGRAM
CONFIRMATION NOTICE
ABRA MASTER PROFIT SHARING PLAN
DIRECT INQUIRIES TO OUR TOLL-FREE TELEPHONE NUMBER 1 -BOO-348-2272
ATTN: DONALD E. MANN
BROWN & DREW
CASPER BUSINESS CENTER
123 WEST FIRST STREET. STE 800
CASPER WY 82601
PAGE 1 OF
NAME: WILLIAM F OOWNES
soc.sec.no.
EMPLOYER TAX ID.
IRS PLAN NO. : 001
ALLOCATION t
ESTIF
BLENDED RATE FUND
BALANCED FUND
GROWTH EQUITY FUND
AGGRESSIVE EQUITY FUND
3 YEAR WEEKLY IIC
5 YEAR WEEKLY IIC
FUTURE CONTRIBUTIONS
EMPLOYER EMPLOYEE
40% 40%
20 20
40 40
O O
O 0
O O
0 O
ESTIF
BLENDED RATE FUND
BALANCED FUND
GROWTH EQUITY FUND
AGGRESSIVE EQUITY FUND
3 YEAR WEEKLY IIC
5 YEAR WEEKLY IIC
GBA/IIC MATURITY OPTION
EMPLOYER EMPLOYEE
100% 100%
0 O
o o
O 0
o o
o o
o o
ACCOUNT/MATURITY
ESTIF
BLENDED RATE FUND
BALANCED FUND
TRANSACTION DETAILS EFFECTIVE 04/20/94
TRANSACTION
CONTRIBUTION
EMPLOYER
CONTRIBUTION
EMPLOYER
CONTRIBUTION
EMPLOYER
DOLLAR AMOUNT UNIT VALUE/RATE
4.326.00
2. 163.00
4.326.00
1 1 .200458
24 .200449
UNITS
193. 1 171
178 7570
ACCOUNT BALANCE INFORMATION BY INVESTMENT AS OF 04/20/94
INVESTMENT ACCOUNTS
ESTIF
BLENDED RATE FUND
BALANCED FUND
AGGRESSIVE EQUITY FUND
CLOSING BALANCE
125.946.71
7.297. 13
14.242.20
8.046.60
INVESTMENT ACCOUNTS
3 YEAR WEEKLY GRA
CLOSING BALANCE
927.02
TOTAL CLOSING ACCOUNT BALANCE AS OF 04/20/94
$156,459.66
1288
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p. JAVC RI»»CC¥
COURTNEY R. KCPLCB
atOTT w. SKAVOAHL
DREW A. ^cnKiNC
Or couNSCi. TO TWE »-iftii*:
B. J. BAKKA
wtLLiAH r. enew
CCOROC M. APOSTOUOS
June 7, 1994
The Honorable Joseph R. Biden, Jr., U.S.S.
Chairman
Committee on the Judiciary
United States Senate
Washington, DC 20510-6275
Re: Additional Questioita from Senator Metxenbaum
Dear Chairman Biden:
Enclosed are my responses to Senator Metzenbaum's written
questions.
I thank the Committee, and Senator Metzenbaum in psurticular, for
allowing me the opportunity to expand upon answers I gave to the Senate
Judiciary Committee on May 25.
Very truly yours,
^^^^i#^ ^fefe^-^s-SiC-,
William F. Downes
WFD/kc
Enclosure
1291
Answers of William F. Downes to Written Questiona Proffered by the
HoiM>rable Howard Metzenbaum:
1. Opponenta of the right to choose have sought to impose restrictions on
abortion such as mandatory waiting periods and biased counseling
requirements. Far many years the Court, in cases following Roe v.
Wade, struck down such cAistades to a woman's right to choose. In
the 1992 Planned Parenthood of Southeastern Pennaylyania v. Casey
decision, the Supreme Court abandoned the strict scrutiny standard
articulated in Roe v. Wade, and adopted a less protective standard
that allows states to impose abortion restrictions as long as they do
not "unduly burden" a woman's right to choose.
a. What is your understanding of the differences between the
Court's decisions in Roe v. Wade and in Planned Parenthood of
Southeastern Pennsjdvania v. Casey?
ANSWER:
Any discussiaa of the di£Ggrences between the Supreme Court's
dedsiona in Roe v. Wade and Planned Parenthood v. Casey
sliould be pcefooed xidth the obeervation that boffai of these cases
articulate (dearly and unequivocally the principle that a
woman's ri|^t to privacy, incJnriing her ri^it to reproductive
cboicet is a fundamental right protected by the Constitution
andf in particular, the 9th and 14th Amendments. Both cases
stand for the proposition that the 14th Amendment's prindide
of personal liberty is broad and encompasses a woman's ri^t
to choose whether or not to terminate her pregnancy.
Roe established a trimester framework which provided that,
prior to the end of the first trimester of pregnancy, the
govemm^it may not interfere or r^nlate the woman's xight to
terminate a pregnancy and that from and after the end of the
first trimester until the point of viability of the fetus* the
government may promulgate regulations only to the extent
that they relate to the proteotioxiofthe woman's health. After
the pointed viability a state may prohibit abortions, esoept those
which are deemed necessary to preserve the life and health of
the woman.
In Planned Parenthood v. Casey, the Supreme Court
acknowledged that a state can enact some regulations
concerning abortion^ but it cannot establish a statutory
provision that has the purpose or effect of putting an undue
burden on a woman seeldng an abortion. To that end* it
specificaDy rejected Pennsylvania's statutory provision ^diich
1292
required a woman to notify her husband of her pregnancy
before she terminated it In applying the "undue burden,"
standard* the Court upheld a state statute concerning
obtaining parental consent before an unemandpated child
could obtain an abortion, provided there existed an ade<iuate
judicial bypass procedure guaranteeing the protection of the
due process n^ts of the minor under the 14th Amendment
b. Without indicating how you rule in any future case, as a
federal district court judge, how would you determine whether
a restrictive abortion law before your court was constitutional?
ANSWER:
In deciding upon the Constitutionality of a statute which
purports to place a restriction on a woman's right to an
abortion, I would address the facta which give rise to the case
in the context of all applicable case law. Of course, Boe v.
Wade, PUptTied Parenthood v. Casey, and other U. S. Supreme
Court decisions, as well as applicable or germane decisions of
tlie Tenth Circuit Court of Appeals, would control my decision,
and I would reach my decision in such a way as to be in
complete accord with the holdings of these relevant decisions.
c. As a federal district court judge, what factors would you take
into account in order to determine whether a certain
restriction constituted an undue burden?
ANSWER:
In determining whether a certain statutory provision
restricting abortion constituted an undue burden, I would
focus upon the legislative intent and the impact or likely
impact of the irestrictive provision. Any statutory provision
whidi had either the purpose or efEect of imposing an undue
burden on a woman's right to reproductive fireedom is
proscribed and, as a Federal District Judge, I would follow
Supreme Court precedent in reaching my decision.
According to an article published on May 8, 1988 in the Star-Tribune
of Casper, Wyoming, you supported efforts to drop £rom the state
party's platform a plank supporting the 1973 Roe v. Wade decision.
According to the account, you stated: "I think it's moreJly
reprehensible to force this on us."
a. Please discuss how you would judge a case in which you
strongly disagreed with the controlling precedent.
2
1293
ANSWER:
Prior to respondrnfif directly to Question 2(a), I wish to make
two points. First, the issue at the 1988 Wyoming Democratic
Convention was not ih^ Hgtifaigaa or wrongnesa of abortion bnt
whether to change tiie iJatform, which had not included an
abortion plank for several years in recognition of the
divisiveness of the issue in Wyoming, by adding such a plank.
Second, the statement quoted in the Cfij^per Star Tribune is
inaccurate. I was upset not hy the yiesEB of the delegates who
were proKioioe but hy the mflffllfiC itt which certain delegates
were attempting to insext an abortion plank in contravention of
the party's settied practice. I have never called anyone's views
on this sufco'ect "morally reprehensiblB" and have tried all my
life to consider and respect the views of others.
As to how I would judge a case in which I strongly disagreed
with controlling piecedent, I would uphold my oath as a judge
and do my best to ascertain and follow the controlling
preoed^it and constitutional ininciples, putting aside personal
pi^fiea^noee or philosoi^es.
b. Do you believe that you would be able to put aside your personal
views about issues such as abortion and apply the governing
federal law?
ANSWER:
It is the sworn responsibility of each federal judge to apply the
governing federal law. I can and will abide by that standard if
confixmed as a Federal District Judge.
3. Through a long series of cases, the Supreme Court has held that the
Constitution contains a fundamental right to privacy that protects
certain aspects of individuals' lives against governmental
interference. In Griswold v. Connecticut, the Court held that a state
statute prohibiting the use of contraceptives violated the
constitutional right to privacy that includes the right of married
people to make their own decisions regarding contraception. The
Court subsequently held in Eisenstadt v. Baird that the constitutional
guarantee of privacy protects the reproductive decisions of married
and luimarried persons, overturning a state law prohibiting the
distribution of contraceptives to xmmarried people. In Roe v. Wade
and in Planned Parenthood v. Casey, the Court held that the right to
privacy protects a woman's decision whether or not to have an
abortion.
1294
3 9999 05983 098 2
a. Do you believe that the Court waa correct in Griswold and
Eisenstadt that the Constitution includes a fundamental right
to privacy?
ANSWER:
The Griswold and Eisenstadt decisions clearly and
unequivocally articulate that the right to privacy is a
fundamental ri^t established by the 14th Amendment. My
vie'ws-and the personal views of any judge-are not relevant
b. Do you believe that the CoTirt was correct in Roe v. Wade in
finding that the right to privacy includes the right to choose
abortion?
ANSWER:
In my answer to Question 1(a), I have addressed my
understanding of the essential provisions of Roe v. Wade and,
therefoi:>e, I thTriTr any discassion as to my personal beliefs on
this or any other U. S. Supreme Court dwdsion is not relevant
I beheve that I have a clear tinderetanding of the precedent
established by Roe v. Wade, and if confirmed as a Federal
Judge, I have every intention of following the letter and the
spirit of the law.
What is your understanding of the extent and boundaries of the
fundamental constitutional right to privacy?
c.
ANSWER:
I have previously touched upon my imderstanding of the
constitutional right to privacy in my response to question 1(a).
However, to expand briefly on that answer, I would state that
the Supreme Court, in Roe v. Wade, instructed ua that the
right to privacy has its roots in the First, Fourth, FifUi, Ninth
and Fourteenth Amendnnents and further, that the right to
privacy is based upon the Fourteenth Amendment's concept of
personal liberty and the concomitant restriction upon state
action. The right to privacy has been extended to certain
activities relating to procreation and contraception. The Court
has also observed that where "fundamental rights" are at
stake, statutory regulations limiting those ri^ts can only be
justified by "compelling state interests,"
4
o
20-487 (1304)
ISBN 0-16-052259-5
9 780160 522598
90000
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